How is Child Support Calculated in Colorado?

In Colorado, child support is calculated using child support guidelines (formula).  The guidelines are the same throughout the entire state.  Therefore, Denver does not have separate child support guidelines.  The Court can vary from the guidelines, but most Courts, including the Denver Courts, will not vary from the guidelines without an extremely compelling reason. There are exceptions and other complexities to the calculation of child support. For the purposes of this post, I am going to talk about the general factors you need to understand how the Colorado Child Support guidelines work.

Child support is calculated using three major factors:

  1. Gross Income: Each parent’s gross income is placed into the formula.  If you are a salaried or full-time hourly employee this is relatively simple.  Bonuses are included.  Overtime is not considered gross income unless it is required as part of employment. Self-employed parties create a challenge for determination of gross income. Tax records and bank statements are usually utilized to come up with an average figure for income.  However, depending on the circumstances of the self-employed individual, there may be disputes as to the party’s gross income.  If a parent is voluntarily underemployed, the Court can base income on potential income, subject to certain restrictions.  There is some complexity around certain sources of income such as stock options, deferred compensation, trust income and in-kind payments such as use of company cars. Support paid to another child of a previous relationship can reduce gross income. There are a multitude of issues that may affect the gross income of a party under certain circumstances.
  2. Overnights with the Child(ren): The second number that is placed into the calculation is the number of overnights per year that each parent has with the child(ren).  If you are with your child all day but you return them to the other parent at night, that day does not go into the formula.  Only an overnight counts.  The more overnights you have, the less you will pay in child support and vice-versa. It is important to be realistic about overnights.  Child support is established based upon the parenting plan the parties reach. If one parent receives a parenting time arrangement (for instance 50/50) and does not actually care for the child during their parenting time, the other parent receives less in child support and is still caring for the child more than contemplated. This issue can be brought back to Court in a Motion to Modify Child Support and Parenting Time but it is far easier and less expensive to get it right the first time around.
  3. Extraordinary and Ongoing Expenses: The third basic element to put into the child support formula includes any expenses that the child(ren) have on a regular basis.  This could include regular medical expenses or extracurricular activities.  Whoever is paying for medical insurance and/or child care can get credit for doing so in the formula. The formula generally shares these amounts in proportion to the parties’ gross income and credits the party accordingly.

These are the basic factors for determining child support. Circumstances change. A party can request a modification of the initial determination of child support if there is more than a 10% difference in the child support obligation due to a continuing change in circumstances. This post is intended to provide a very basic understanding of child support in Colorado. Each circumstance is different and must be reviewed accordingly. An experienced Denver family law attorney can help you estimate an appropriate child support calculation in your case.

If you have questions regarding child support, contact an attorney at Divorce Matters.

Posted by a Denver Divorce Attorney at Divorce Matters.

Common Law Marriage – and Divorce – in Colorado

The face of marriage is changing. More and more committed couples are delaying marriage to jump-start careers or simply juggle the economic impacts of a recession. With the stigma once associated with cohabitation a relic of the past, many couples are choosing to live together, committed, yet single.

But as with any relationship, married or otherwise, sometimes things do not work out as planned. When non-married couples who have had children together, purchased homes, shared debt, and made future plans find themselves facing a “divorce,” the process of separating their lives often requires legal intervention.

For these couples, the first question they should ask is: “Are we common law married”?

What is a Common Law Marriage in Colorado?

In Colorado, a common law marriage can be defined as a marriage between a man and a woman that is based on the couple’s agreement to have a marital relationship and not based on a formal ceremony or legal formality.

There are numerous factors, however, that must exist for a relationship to be recognized as a common law marriage. Simply because a couple has lived together for a period of time does not mean they meet the requirements. In some situations, a couple can cohabitate for 10, 15, or even 20 years and still not be considered married under common law. So how is a common law marriage determined in Colorado? Couples seeking common law designation must meet the following basic criteria, although the court will also look at other aspects of the relationship:

  1. Holding themselves out as a married couple
  2. Consenting to the marriage
  3. Cohabitation
  4. Having the reputation in the community as being married

These criteria are written in “legal-ese”, but essentially what they means is that the couple is known as being married to their friends, family, and their community, regardless of their legal status. For example, if the couple had a ceremony and wears rings they would be holding themselves out as a married couple, regardless of whether or not they actually signed a marriage license.

Dissolving a Common Law Marriage: Is there such a thing as a “Common Law Divorce”?

So how do you deal with separation if you are common law married? Do just agree to go your separate ways?

As with a lot of aspects of family and divorce law, it’s not that simple.

Because “for all intents and purposes” you are legally married, even without an official marriage certificate, you will need to follow the same divorce process as a legally married couple. Your common law marriage essentially acts as a marriage certificate in the eyes of the court. You may still be responsible for spousal maintenance (alimony), child custody, and dividing property.

As a common law married couple, you have the same rights and privileges as a traditionally married couple, as well as the same responsibilities. In addition to sorting through all of the obligations that you held together as a couple, you also are unable to remarry until the divorce is finalized.

 

Many couples believe that avoiding the legal marriage designation makes things simpler. But in the end, should things not work out as you and your partner had hoped and dreamed, and you have a common law marriage, you may find yourself facing the same complicated path to separation as a traditionally married couple.

 

If you’d like to schedule an initial consultation with one of our expert attorneys to determine if you are in fact common law married, give us a call or click here! 

Do Great-Grandparents Have Visitation Rights in Colorado?

In Colorado, by statute, a grandparent can ask the court to grant them the right to have visitation time with their grandchildren.

However, what about great-grandparents?

A recent Colorado Court of Appeals case, In re the Parental ResponsibilitiesConcerning M.D.E., 2013 COA 13. No. 12CA2482, has made it clear that a great-grandparent does not have standing, or the independent legal right, to seek visitation.

In M.D.E.,the father challenged the district court’s order granting the great-grandmother’s motion to intervene.  The Court of Appeals looked at the statutory definition of a grandparent, which states that a grandparent is “a person who is the parent of a child’s father or mother.” Based on that definition, the Colorado Court of Appeals determined that a great-grandparent cannot be considered a grandparent within the meaning of the statute and, therefore, does not have standing, or the legal right, to seek visitation with their great-grandchild.

So, what can we learn from this case?

While the issue of great-grandparent visitation is uncommon, if you are going through a divorce and it is important to you that the child’s great-grandparents have time with the child, and your soon-to-be ex-spouse is not a fan of them, you may want to try incorporating visitation time for the great-grandparents into your parenting plan.

Are Gifts to Married Children Considered Marital Property?

In Colorado, when a parent or third-party buys a house or pays down a mortgage on a home, and the home is titled in both the husband and wife’s names, the law presumes the money is a gift to the marriage and subject to equitable distribution in the event the couple divorces.

An unresolved issue, however, was whether this legal presumption had to be overcome by clear and convincing evidence or could be overcome under a lesser standard of preponderance of the evidence.

Recently, in the case of In re the Marriage of Krejci, 2013 COA 6. No. 11CA2345, the Colorado Court of Appeals was faced with this very question. In Krejci, during the marriage, the wife’s mother paid off the mortgage on the marital home that was jointly owned by the parties. During the divorce the wife argued that when her mother paid off the mortgage, she was giving her a gift, and therefore that portion of the equity in the home was not part of the marital estate that had to be divided with her soon to be ex-husband. The Court of Appeals determined that when the mother paid down the mortgage on her daughter’s marital home, it was presumed that the payment was a gift to the marriage and held that the presumption could only be overcome by clear and convincing evidence.

If you have questions regarding the Division of Marital Property, contact an experienced Denver family law attorney at Divorce Matters.

What Factors Determine Child Custody in Colorado?

Child custody can be one of the most contentious and emotional issues in a divorce. Parents and children usually need an experienced Denver Child Custody Attorney to help them negotiate an arrangement that meets the needs of the child and parents.  Divorce can take a significant emotional toll on a child and the parents.  A solid custody arrangement that is drafted by a skilled Denver Child Custody Attorney will minimize the stress on both the child and the parents. It will also allow each parent to provide the best care he or she can for the child.  At Divorce Matters, we will make sure that each parenting plan we draft will be done in a manner  that works best for you and your children.

Under Colorado Law, child custody is broken into two parts:  (1) Parenting Time;  and (2) Decision Making.

Parenting Time:  Parenting Time is the amount of time the children will spend with each parent.  For example, parenting time might have the children spending 60% of their time living with one parent and 40% of their time living with the other parent.  Parenting time will also allocate how vacations and holidays will be spent with each parent.

If the parents cannot agree on parenting time, the court will have to determine the proper parenting time for the children.  In determining a proper parenting time, the court will adopt a parenting plan that the Judge thinks is in the best interests of the children.

Decision Making: Decision Making involves how decisions affecting the raising of each child will be made.  Decisions regarding the raising of each child include, but are not limited to, issues involving medical care, schooling, religion, sports, camp, and other extra-curricular activities.

If decision making is allocated to both parents, then both parents have to agree in order to make these decisions.  It is important that your attorney seriously look at how decision making will be allocated and for which decisions.   Most judges will split decision making and grant “joint” decision making.   However, when joint decision making is granted and the parents cannot agree on issues such as sports, camp, religion, medical care, or schooling, decision making can become a serious problem for many divorced couples; especially those in which one parent withholds their approval merely to control an ex-spouse.  In essence, joint decision making can grant an over controlling parent the right to harass and ex-spouse by withholding approval of almost every decision of the other parent.   So, make sure you attorney understands these potential difficulties when determining whether joint decision making is proper in your case.

Not all Denver divorce and Denver child custody attorneys are created equal, so choose your attorney carefully.

How to Choose the Right Denver Divorce Lawyer

Finding the right Denver lawyer to handle your divorce can seem like a daunting task. You need to find a divorce attorney that is focused on you and your rights, and has the necessary experience to handle your claim. You need an attorney that has the same goals as you ”“ the last thing you want to do is argue with the person who is supposed to be representing your best interests! At Divorce Matters, we make it a priority to aggressively protect our client’s interests while keeping their individual needs in mind.

There are many Denver divorce lawyers. The right attorney will have the ability to work towards resolution, yet have the knowledge, experience and skills necessary to litigate the issues in front of a judge should the need arise. At Divorce Matters, we pride ourselves on our knowledgeable and experienced attorneys, each of whom intimately understands the maze that is the Colorado court system.

You also need an attentive attorney who will keep you informed and ensure that you play an active role in your divorce; someone who will work with you to resolve your legal matter in the best way possible. After all, no one will know your case and needs better than you. What is important to you? Protecting your assets? Spending as much time as possible with your children? Maintaining a positive, on-going relationship with your soon-to-be ex-spouse? The right attorney should ask what you find most important and should help you understand how you can assert and protect your rights. While it may seem like a challenge, keeping these things in mind will help you in find the right Denver divorce lawyer to help you.

Do Joint Holiday Celebrations Spell Trouble Post-Divorce?

When parents begin the divorce process, they soon realize the difficulty and reality of the task at hand.  One of the most difficult decisions they may encounter is dividing holidays and special occasions.  As holidays and special occasions tend to hold a special place in our memories, it can be difficult to face a change in traditions. Some parents might be tempted to agree to jointly celebrate certain holidays and celebrations.  For example, one parent might propose that birthday parties be held with both parents attending so the child has a single birthday party with both parents.  Parents may be tempted to go this route with the idea that it will maintain a sense of family and security for their children, as well as help them to feel less guilty about the divorce.

This type of agreement will only work if the parents get along and are able to work together; however, there are several considerations parents should make before entering into this type of agreement.  They must consider the reality of what will happen in the future, as it is very likely that each of them will move on and find another partner.  In addition, most parents who divorce will face some conflict in the future as issues arise regarding the children.  You may find yourself at odds with the other parent and then forced to “invite” the other parent into your new home for a birthday party or other event.  If forced to “invite” the other parent, the tension of the situation can be felt by all who attend the occasion.  Or worse, if you choose not invite the other parent, you may find yourself dragged into court by the other parent for not allowing them to attend the event.

Unfortunately there is no “one size fits all” answer when it comes to parenting and divorce.  The right answer will depend on your personal situation.  Parents facing these issues should think long and hard before agreeing to joint celebrations.  Something to keep in mind, it is always easier to invite someone by choice, rather than by obligation.

What Marriage Counselors Need to Know About Today’s Divorces

While modern day divorce is certainly different than it was 25 years ago, going through a divorce will still be one of the most stressful and emotionally painful times in a person’s life.

There are a few things to keep in mind when counseling clients who are going through a divorce today.  For one, courts are overcrowded.  While most couples want their divorce to be resolved quickly, this rarely happens.  Inevitably, a couple will remain at the mercy of the schedule of the court regarding how quickly their divorce will proceed unless they are able to reach an agreement before going to court to have a judge decide.

The opportunity for these agreements often comes during the process of mediation.  Mediation is a required step for all couples moving through the divorce process in Colorado and, from the vantage point of an experienced divorce attorney, it is often the most important step.

When a couple cannot reach an agreement in mediation, they hand over to the court the responsibility to make a decision regarding their assets, liabilities, and most importantly, their children.  What most couples fail to realize is that judges see several cases each day and have hundreds of cases on their docket.  They do not have the time or ability to be abreast of everything that goes on in each case.

I always tell clients “no one knows your marriage, your children, or your divorce, better than you, least of all a judge who only knows you through court pleadings.”  Leaving every decision up to the court often results in outcomes that are not what either party wants.  Helping clients find the path of least resistance in their divorce will likely mean helping them understand that courts are bound to providing a “cookie cutter” decision, which might not fit their circumstances.  In mediation, however, the parties can make their own agreement, and tailor it to fit their needs, which would likely be outside a judge’s purview to order.

Oftentimes, mediations fail because people “want their day in court” to get “justice” or vindication for what happened in their marriage.  However, in Colorado, divorce is a no-fault process.  That means that while one party may have been unfaithful or may be the “reason” why the marriage failed, this information is usually irrelevant in any court proceeding and most judges will not entertain arguments made that include these facts.

Further, when it comes to the inevitably difficult decision of dividing parenting time, modern parents must remember to be realistic about what they want. Sometimes, people are stuck in the mindset that one party will have primary custody of the children, while one party may only have them every other weekend.  Today, courts are likely to order equal parenting time to each parent.  This may not be the best course of action considering the American work week is generally a long one, and a party who works 70-80 hours a week may not be in a position to have their children as much as their spouse, who works less.  Custody arrangements decided in mediation often yield a much more creative and practical agreement than what a judge will order.

The pressures of life can be overwhelming for a parent going through divorce, and the same stressors can trickle down to their kids.  When a couple is able to finalize their divorce outside of the courtroom, they will inevitably save money, but more importantly, the benefits of a custom-made divorce settlement agreement will help their kids, who will have a parenting schedule that is far more conducive to their success and happiness.

While there will always be divorce cases that end up in court, considering the busy dockets and high expense of litigation today, a couple who can settle their divorce in mediation will often reap the benefits of an agreement that was tailor-made to fit their lives.  Helping clients understand the importance of compromise and creative problem-solving is an important role that attorneys and other professional can play in the divorce process..

Colorado: Nonparents May Apply for Parental Rights

A recent decision by the Colorado Court of Appeals is good
news for those seeking parental responsibilities of a child that is not the
parent of the child.  The court found in In
re M.W., 12CA0771, 2012 WL 4464386 (Colo. Ct. App. Sept. 27,
2012), that a psychological parent who has standing under C.R.S.
14-10-123(1)(c) (2012) may bring an action for parental responsibilities
without having to show that the parent(s) of the child is unfit to parent.

Many courts were reluctant to intervene with a parent’s
fundamental right to parent after the U.S. Supreme Court’s decision in Troxel
v. Granville, 530 U.S. 57 (2000).  In
Troxel, the court held that parents have a fundamental right protected
by the Due Process Clause to make decisions concerning the care, custody, and
control of their children.  530 U.S.
at 66.

In re M.W. has set a clear test for the courts to
follow in these matters.  The court found
that while a presumption exists favoring the parent, allocation of parental
responsibilities to a nonparent can be ordered if the nonparent has standing
and can show by clear and convincing evidence that 1) the parental
determination regarding parental responsibilities is not in the child’s best
interests and 2) it is in the child’s best interests to allocate parental
responsibility to the nonparent.  2012 WL
4464386 at *3.

While the clear and convincing standard is a high evidentiary
burden, this case has set a clear standard for the many step-parents and same-gender
parents who are seeking allocation of parental responsibilities.

Helpful Resources for Divorcing in Colorado

Going through a divorce can often be a lonely, confusing time. Between the legal challenges, the financial obstacles, and your feelings of isolation or anxiety, it can sometimes seem like you have nowhere to go. But there are many resources available to divorcing couples, professionals in their industries who specialize in helping people through this transition. The question is how can you know which is the appropriate resource for your situation?

Here are some divorce resources described:

  • Therapist or Counselor. Therapists no longer have the same stigma today that they did 20 years ago. It used to be that people viewed therapy as something you did if you were crazy. It wasn’t true then, and it’s certainly not true now. Therapists are trained to help you through the most emotionally challenging times in your life. They will listen to you, help you see different perspectives or options, and provide guidance as needed. A therapist is also helpful for your children as they navigate their own feelings regarding the divorce.
  • Divorce Attorneys. When it comes to the legal side of a divorce, your best resource is your divorce attorney. They can give you legal insight and support during what is typically a complex and stressful process. Worrying about all the legal details in a divorce can not only create anxiety and stress in your life, but it can also put your family, your home, or your livelihood at risk. Your divorce attorney will make sure that all of the legal aspects are handled professionally and your rights are protected.
  • Financial Planner. Money is one of the most common sources of strife during a divorce. Hiring a financial planner to help you sort through your joint finances””as well as your own personal finances””can be a source of relief and comfort. It can also be a necessity, depending on how complex your financial situation is. Financial planners can help you divide joint assets and debts, such as jointly owned retirement funds or properties. Also, while a financial planner cannot guarantee what maintenance fees you will receive, they can help you budget those fees as a soon-to-be single person.
  • Divorce Coach. Instead of focusing on just one area of divorce, like financial planners or attorneys, a divorce coach is a professional who specializes in assisting you through the entire divorce process.  A divorce coach can be someone to lean on, someone to give encouragement, or someone to help you make good decisions while you go through this emotional time. Rather than listening and trying to uncover the source of your feelings, as a therapist would, a divorce coach focuses on problem-solving and taking action. Many divorce coaches have experienced divorce themselves, and they can help you build a roadmap for the future, calling on all the resources at your disposal to move forward.

Divorce is difficult, there’s no question about that. But you don’t have to do it alone. There are numerous professions and resources available to you. A good attorney can be the first stop. They should be able to provide you with additional resources to help you navigate this challenging time.

How many of you have used a divorce coach in your own divorce? Did it help? Share your experiences with us.