Can My Citizenship Status Affect My Divorce?

Divorce can be a difficult process on its own, but when you have citizenship concerns it can become even more daunting. However, if you arm yourself with knowledge about your situation you can properly prepare yourself for what to expect.

Is there any difference in the divorce proceedings or parental rights hearings if I am not a U.S. citizen or if I have recently become a U.S. citizen?

The short answer is no! The proceedings should continue exactly as they would if there were no citizenship concerns. If you have recently become a citizen, there are no concerns as to the status of your citizenship, because your citizen status cannot be taken away due to your divorce.

Will divorce affect my green card status?

This question has a more complicated answer than the first! To understand how divorce might affect your citizenship status, you first have to understand how the citizenship process works. To become a citizen, you must have a green card. In order to get that green card, through marriage, immigration officials must confirm that your marriage is a “bona fide” marriage. This just means it cannot be a marriage for citizenship. After you get your green card, you have to retain it for a certain amount of time, usually 5 years, to gain your citizenship. However, this time shortens from 5 years to 3 years if you are married to a U.S. citizen. If you do file for divorce before the 3 years is up, you will not have your green card revoked, however you will have to wait the 5-year waiting period for citizenship, as opposed to the 3-year waiting period when you are married to a U.S. citizen. This also holds true if you have been married longer than 3 years, but less than 5 years, and have not yet filed for citizenship. If you have already had your green card for 5 years before you file for divorce, however, the divorce will have no bearing on when or if you can file for citizenship.

If the divorce is contentious and your ex-spouse claims that the marriage was not bona fide, the case can become a little bit more difficult. If you already have citizenship, this will not affect your citizenship. If you still have your green card, you will just have to prove that the marriage is or was bona fide, either by what immigration officials have already proven or by your own evidence, to continue in the citizenship process.

What if I am undocumented? Can I still get a divorce?

If you are undocumented, you can still get a divorce and proceedings will continue as they would for any other divorce case. It is important to note, though, that anything you say in divorce court can also be used against you in immigration court. Because of that, if you are undocumented, it is wise to retain an immigration attorney as well as a divorce attorney in the case that you do want to file for divorce. Being undocumented could also make parenting agreements difficult, especially if you are deported or leave the United States. Again, in this case it is important to retain an immigration attorney, as well as a divorce attorney, to protect your parental rights.

Will I be Affected by Changes to the 2021 Child Tax Credit?

Recently it was announced that under the American Rescue Plan Act the expanded Child Tax Credit would be distributed differently in 2021. This year, half of the tax credit will be distributed on a monthly basis beginning in July and the other half will arrive with your 2021 tax refund. While this tax credit is a welcomed relief for many families who are struggling to make ends meet, it also spells confusion for most folks who are going through or already divorced.

How will this tax credit be distributed if I am divorced?

The Child Tax Credit can only be claimed on one tax return, so if you are divorced or filing separately this means that only one parent will be able to claim the tax credit. A court order or separation agreement will name the person eligible to claim the tax credit, this is typical whichever parent has primary custody. There are several ways a 50/50 custody arrangement might address this, for example, some may choose to file with the tax credit every other year.

Can the courts rule that this year’s tax credit be split?

In most cases, the courts will follow whatever was agreed upon in your separation agreement or court order. However, this is not the end of the line if you wish to treat this year’s tax credit differently. For example, if your ex claims the tax credit every year but you are able to come to an agreement with them that you will file for the tax credit this year, you can file an IRS Form 8332. This form is a right of tax benefit transfer, which would allow you to claim for this year. Please be aware that it is important you check with your attorney first before moving forward with anything that deviates from your separation agreement. We also suggest seeking out a tax professional for help with filing your taxes.

Can the tax credit payments be garnished for child support if I am behind on my payments?

Per the American Rescue Plan Act, this tax credit is not subject to garnishment meaning you will receive the full amount from the government. However, this does not protect that payment from garnishment or levy once the money is in your bank account. Another consideration is that while it won’t be garnished when distributed when you file your taxes at the end of the year it may be subject to offset.

What do I do if the tax credit was claimed by my ex, but I was supposed to claim it this year?

The best way to handle this is to get in touch with your attorney. They will be able to help you chart the best course of action, whether that be reaching out to negotiate with your ex and coming to an amicable resolution, or filing a motion of contempt with the courts.

If you have questions, please reach out to one of our experienced attorneys today.

This Is How The Divorce Process Works and How Long It Will Take

When it comes to divorce most would say they want the process to be over as soon as possible so they can move on with their lives. This inevitably leads everyone to ask “how long will it be until I am officially divorced from my spouse?” A great place to start is our Divorce Timeline, which can be found under the Tools tab on our website. However, we also want to give a more general overview of how long the process might take. The specific circumstances and complexity of your case will determine the timeline, but overall, this is what you can expect the process to look like.

 

When You First File-

 

Once you have filed a Petition for Dissolution of Marriage with the courts in your county, your spouse must be personally served.  Learn more about what to do if you are the one being served divorce papers.

Once your spouse is served, he or she has 21 days (35 for out of state) to file a response. If you and your spouse both want the divorce and sign a petition jointly, the Service/Response step can be ignored. Your spouse may also agree to waive service if you do not file jointly. Just because you sign jointly does not mean the process is complete, and you will still need to follow the rest of the requirements in the process.

 

Once Your Ex Is Served-

 

You have 42 days after the date of filing to set up an initial status conference with the court and submit your financial disclosures. The initial status conference is your first court appearance and is an informal way for both parties and the Court to get on the same page about dates and deadlines in your case. It depends on the county and jurisdiction that you are in as to whether they will schedule a time for your initial status conference automatically once you file, or if you or your attorney have to reach out to the court to schedule your own. The timing for this solely depends on your county’s court and its timeline. You also will need to have your financial disclosures submitted within that 42-day deadline as well.

 

After Initial Status Conference-

 

You have the option to file for Temporary Orders, which is only necessary if there is an immediate conflict that must be addressed while your case is ongoing. Temporary Orders can help with decision making, child support or spousal support, or who will live in the marital residence during the divorce process. Temporary orders will be replaced by permanent orders at the end of your case. A temporary orders hearing, which is a separate court date, must be set to decide this and it will extend your case.

 

Once you’ve had your initial status conference, you and your spouse are then required to attend mediation by the state of Colorado. Everyone who files for divorce in Colorado must attend mediation, with a few exceptions. In rare cases where the parties agree to every issue, it is possible to skip mediation, which would shorten your case. Additionally, you may request mediation be waived in cases of domestic violence.

 

Mediation-

 

Mediation is a formal settlement conference where the mediator (whom you hire) assists in trying to reach a full agreement between you and your ex. If mediation is successful, you will leave with a signed or partial settlement agreement. Then your attorneys draft the final agreements and file the documents with the court.

 

If mediation is not successful, you must either come up with a settlement or prepare to go to trial. If you need to go to trial, this must be scheduled with the court and the timing completely depends on their availability and timeline. This can extend your case; therefore, it is ideal to come up with agreements in mediation or a settlement.

 

Finalized-

 

Your divorce will be finalized once a judge issues a decree of dissolution of marriage which then severs the marriage, and you are no longer married.

 

Post-decree-

 

If a party is not satisfied with the final decision made by the court, then an appeal can be made. There are specific time constraints around appeals, so you will want to speak with your attorney if you wish to appeal any part of your divorce decree.

 

You also may modify certain orders put in place by the courts if circumstances change after the final agreement has been made. Again, you will want to speak with your attorney if you would like to modify any documents or orders post-divorce.

 

Overall, it can be difficult to determine the exact length that it will take to finalize your divorce because every situation is different. Your timeline will depend on the specific circumstances and jurisdiction of your case.

If you have questions about your particular situation or would like to speak with an attorney today, contact us.

If I’ve Lost My Job Due To The CoronaVirus, Can I Get My Maintenance or Child Support Payments Reduced or Changed?

Have you experienced an interruption to your job due to the coronavirus such as a reduction in hours or loss of job? Can you get your maintenance or child support payments reduced or changed if this is the case and how quickly?

The coronavirus is pushing the country into uncharted waters, jeopardizing nearly half of American jobs. If your work has been impacted by the coronavirus, you may wish to modify the amount of maintenance you are paying your ex-spouse. The first step in tackling this question is to determine whether you can modify maintenance in the first place.

If you and your ex-spouse were able to agree to maintenance as a part of a larger separation agreement, you may have agreed that maintenance is modifiable, or non-modifiable. If the separation agreement states that maintenance is modifiable, then keep reading.

Adversely, if the separation agreement expressly states that maintenance is non-modifiable, then you are unable to request a modification, period. You must pay your maintenance pursuant to the terms of the separation agreement, regardless of changing circumstances.

If maintenance was awarded by the judge at your permanent orders hearing, then it is always subject to modification. This is mandated by Colorado Statutes, which states: “Except upon written agreement of the parties, an award of maintenance entered pursuant to this section may be modified or terminated pursuant to the provisions of section 14-10-122.” §14-10-114(5)(a), C.R.S.

In order to modify maintenance, you must meet the legal requirement, which is “a showing of changed circumstances so substantial and continuing as to make the terms unfair.” §14-10-122(1)(a), C.R.S.

When dealing with child support, there is a higher bar to meet, as the change must result in at least a 10% difference in owed support. Maintenance, on the other hand, depends on whether you can prove to the court a “substantial and continuing” change in circumstances.

This is not an either-or test; you must prove that the change in circumstances (your lost job, for example) is both substantial and continuing.

What courts look for is a change in circumstances so substantial that it renders the original maintenance award unfair. A modest change to your income is not likely to be seen as substantial, no matter how permanent it may be.

Loss of employment, while immediate and substantial, is usually temporary. If you will likely be re-hired when the pandemic subsides, it is likely premature to file for a modification of maintenance or child support because you will be unable to meet the legal requirement that the change in employment circumstances is continuous, not just substantial.

If you have any questions or concerns about your maintenance or child support call us at 720-542-6142 to speak with one of our attorneys, or fill out our form here.

Because family law is an extremely personal matter we are not eliminating face-to-face meetings at this time. However, we do have virtual and telephonic meetings available and strongly encourage them for anyone who wishes to conduct their consultation via telephone or computer in accordance with social distancing protocols.

So Your Ex Is Not Paying Child Support”¦

Getting a divorce can feel a little like running a marathon. Once you reach the end, you might collapse in a heap and tell yourself, “Never again.”

Unfortunately, in many situations, the real trouble has only just begun. Now, you need to spend one or two decades co-parenting with your ex, which often involves one parent paying child support to the other based on a monthly schedule.

But what happens when the other parent refuses to pay? You can ask them to pay, but they might avoid your phone calls. In this situation, you might need to seek enforcement from the judge, called contempt of court.

What is Contempt of Court?

When you received your divorce decree, the judge entered certain orders. These are not optional recommendations to each party but judicial commands to do something. If you or your ex decides not to follow the order, then a judge can find you in contempt.

Your ex might flout the judge’s ruling in all kinds of situation, such as paying child support or alimony or refusing to transfer title of an asset that is now yours thanks to the division of property.

What are the Punishments for Contempt of Court?

Judges have the discretion to bring the party in contempt back into compliance. Sometimes, a stern warning is enough. In other situations, a judge might order the person in contempt to pay money until they start following the orders or even send the person to jail. Usually, it never gets that far””but it could.

A judge might also revisit orders. For example, the judge could award more custody to a parent if his ex decides to disobey the judge’s orders. To determine what is the best remedy, you should consult with your Denver family law attorney.

How Do I Request a Contempt Citation?

You must complete forms and submit them to the court for consideration. It is probably best to have your attorney pursue contempt for you. Making a frivolous request could hurt you more than it would help, so let a lawyer analyze whether requesting a contempt citation is in your best interests.

Divorce Matters Can Help

Obtaining a divorce is only half the battle. If you are struggling to get your ex to follow the terms of your divorce, then you might need to file for a contempt citation. Contact Divorce Matters today. Our Denver contempt of court divorce lawyers have helped countless people over the past years.

Contact us today by calling 720-580-6745 or sending us a message.

If I Get a Raise, Will My Child Support Increase?

Life happens, and because of this, a child support order is not permanent. Sometimes a parent may find themselves in a new job where they are earning more or they may receive a significant raise at work. On the other hand, sometimes circumstances go the other way, and a parent may find they’ve lost their job. Whatever your circumstances are, if you have a child support order in place there is definitely a chance that at some point it will need to be modified.

To modify a child support order, there has to be at least a 10% difference in the existing child support order and there is no mechanism in place that automatically changes a child support order when a change in circumstance occurs. If a change needs to be reviewed, you need to file a motion to modify child support with the court.

The short answer? You may have to pay more if you receive a raise at work. However, this is not necessarily a given. The difference between the existing child support order and the potential new one has to be greater than 10%. The court also needs to receive a motion to modify child support before the order will change.

Some other situations where child support may be modified:

  • A change in child custody and visitation
  • Reduced child care costs as a child gets older
  • Emancipation of a child

If you believe you need help with a modification of child support, contact the attorneys at Divorce Matters. We also offer a free child support and maintenance calculator app if you need help determining potential changes, our app can be found in both the Google Play and iOS stores, click here to learn more.

Navigating a Divorce with Kids

Conor Stewartson

How Do Kids Change Divorce?

When couples have children, a divorce becomes much more complicated. Even if you and your spouse are committed to an amicable separation, you will need to think through your post-divorce future for the sake of your children. There are many factors that you must consider when going through a divorce with kids, including co-parenting plans and custody arrangements, child support, emotional support, and even maintaining respect toward your former spouse in front of your child to contribute to a healthier family dynamic. Divorce Matters® is here to offer help in each of these areas so you experience a more seamless divorce.

Come Up with a Parenting Plan

Children need continuing contact with both parents, and a judge will want to see a detailed parenting plan. At the outset, you should realize that a 50/50 custody split might not be realistic for several reasons: an imbalance of parental care, one or both of you deciding to move, or if one of you has a past criminal record. However, you should work toward the fairest custody plan that looks out for the best interest of the child or children.

If one of you decides to move far enough that it could prompt school changes, you will need to reevaluate your agreement and settle it with the court. This will involve who and where the child or children will live with during the school year and decide:

  • When the non-custodial parent will have weekend visitation
  • How the children will split their summer vacations
  • Who the children will spend holidays and birthdays with
  • How you will transport the children to and from visitation, as well as when they will be dropped off and picked up

The more detailed your parenting plan, the better. Deciding on issues ahead of time can reduce conflict later on. Divorce with kids will also require determining parental rights and obligations to ensure both sides are contributing fairly to the child’s life. This includes setting boundaries on both sides so the child will not take advantage of one parent or “choose” a favorite. Both parents must have clear rules the child must follow to allow for a healthy relationship in the family and promote an equal partnership. If you need help developing a parenting plan, you can consult with one of our divorce attorneys who can advise you on how to achieve the best possible outcome for you and your child.

Discuss Child Support

Every child has a right to enjoy the fruits of his or her parent’s income and live with a parent who can take care of them financially. For this reason, child support is a right. Child support includes things like health insurance, medical expenses, and child care in addition to the monthly overall care costs. Depending on your situation, you might need to pay extra to cover these costs.

Hiring a child custody lawyer to help with a divorce with kids is crucial, whether you are the paying or receiving parent. Many factors contribute to how child support is paid that you will want professional assistance with, such as income, overnight stays with each parent, extraordinary and ongoing expenses – and who has paid most of them – and much more. You don’t want one stone unturned. This is why parents going through a divorce with kids should partner with a firm like Divorce Matters® that will look at the total cost of raising the children, both of their gross income, and identify how child support should be paid out or received.

The state has a formula it uses to calculate child support. We make this easy to calculate with our free child support and maintenance calculator. You can download this free tool in the Google and Apple app stores.

Stay on Your Best Behavior

It is perfectly understandable to feel depressed, angry, and frustrated during a divorce with kids. After all, a relationship you thought would last for life is now crashing to the ground. Nevertheless, parents must remain amicable if they want their children to flourish. This means never bad-mouthing your spouse when the children are around or trying to turn your children against their mother or father. Furthermore, trying to alienate your children could be used against you when it comes to determining custody.

You must also keep communication consistent between you and your ex, as well as your child. Allow the child to speak to the other parent when they choose to maintain a healthy relationship. If you ever do need to communicate with your former spouse, the child should never see you fighting over them or disrespecting one another. This is not conducive to a healthy relationship and can later result in resentment from the child toward you or your former spouse.

Emotional Impact on Children

While you are going through a divorce with kids, your child will be feeling a mix of emotions – anger, sadness, confusion, and even guilt. It is important to reassure them that your relationship ending has nothing to do with them, and it may even improve your relationship as a family unit. Do not use them as messengers between the two of you, and under no circumstance should you put them in the middle of your conflicts or use them as collateral. Effective communication and setting boundaries as parents are crucial to the mental health of the child. Continue to reassure them that they are loved and allow open communication so they can express their emotions freely. It could be beneficial to seek out a neutral party like a counselor or therapist for your child to remove any bias and allow them to speak about the situation.

Finally, allow you and your child time to adjust to this new normal. This is a new journey for all of you, so allow yourselves to be open and flexible, and have a safe space to grieve the divorce. You also need to get used to the new environment with one less parent in the house (potentially impacting pre- and post-school routines or weekend plans). It is important to adjust and even establish new traditions for you and your child to restore a sense of normalcy.

When it comes to introducing new partners, take ample time to allow you and your child to get over the divorce before involving any new romantic partners. Not only could this be confusing to the child, but it could hurt your relationship with them. Do not try to force a relationship with this new partner, validate their feelings, and do not involve them in the co-parenting responsibilities. New partners can be a slippery slope, so only enter into a relationship with one when you are truly ready and when you know they will fit in with your children.

Calm Guidance You Can Trust

Divorce with kids is an emotionally turbulent and challenging time. You need trusted, experienced divorce lawyers in your corner. At Divorce Matters®, our team has the knowledge and experience to help guide you through the process step by step. We only want what is best for you and your family. Please contact us today to schedule your comprehensive, initial consultation.

Child Support and the Gig Economy

Avoiding child support payments is nothing new, but the way people try to hide their income is new. There are tried and true methods for obtaining child support. Obtaining tax refunds, garnishing wages and bank accounts are straightforward methods that work. However, these tactics rarely work for the gig economy. The gig economy is a fancy way of saying the self-employed economy. Another word that people like to use is freelancing, but it all means self-employed.

Why Being Self-Employed Makes It Harder for Child Support Collections

The self-employed rarely have tax refunds, and they almost always owe taxes at the end of the year.  They can time their payments to the IRS to avoid ever having a tax refund. The self-employed often don’t have actual wages to garnish and bank accounts are often in a company name, not subject to garnishment for individual child support obligations. The self-employed are sometimes paid in cash which is almost impossible to trace or collect.  For these reasons, the self-employed have always posed a problem for child support collections.

One of the obstacles with the gig economy is that when someone is self-employed is not easy to track their earnings or income. Employers report new hires to data bases for child support enforcement, but employers do not have to report contractors. This means that companies such as Uber or Airbnb do not report to these databases because they hire contractors and not employees.

How Can You Overcome This Obstacle?

Payments to contractors can be garnished once they are discovered and a private family law attorney can assist in collecting. But often the self- employed person moves onto a new gig once the old gig is discovered and garnished. The new gig economy poses new problems for child support enforcement and as the gig economy grows, so does the problem of child support collections.

Contact A Divorce Matters Attorney For Help With Obtaining Child Support

If you have questions, contact us here at Divorce Matters. We can help you try and recover child support if you find yourself on the wrong side of the new gig economy. Visit us at www-divorce-matters.com for more information.

Paying Child Support When You’re Not the Father

Below, you will find three unusual ways to pay child support in Colorado even though you’re not the biological father. Paternity can be established without a genetic test proving who the biological father, here’s how paternity can be established by law in Colorado.

1. You Told the World You Were the Father

This sounds strange, but the reality is you could become the legal father if you held yourself out as the father. The law states you become the legal father if a man “receives the child into his home and openly holds the child out as his own natural child.” This is a father by “conduct and words.”

2. You Made An “Attempt” to Marry the Mother Before the Child Was Born and the Child Was Born Within 300 Days of the Ending of Cohabitation.

The law is not so clear on what an “attempted marriage” is and how you need to fumble the ball, but an attempt could be good enough. You must have lived with the mother, attempted to marry the mother and have the child born within 300 days of moving out.  The idea is that just because some technicality, or tornado or other crazy event kept the marriage from being formalized should not stop the law from “presuming” who the father is.

3. You’re Married

Even if you’re not the biological father, the law presumes you are the father if the child was born while you were married to the mother. Yes, the law presumes faithfulness and biology.

Get in Touch With a Professional Denver Paternity Lawyer

Let our team of established paternity lawyers in Denver help you with paternity, child support, and any other family law cases today! These kinds of things can be confusing and stressful, we’ll help you along the way.

5 Things To Know About Child Support Garnishments

  1. Child support garnishments can be sent to an employer to attach wages. For wage attachment, Child support garnishments go to the front of the line above all other garnishments except IRS liens.
  2. Wages can be garnished up to 65% of “disposable income.” That’s after-tax income. So the employer first reduces wages by taxes and then by child support.
  3. An employer can deduct an additional $5 per paycheck as an administrative fee. This does not reduce child support but further reduces the employees pay.
  4. Child support garnishments can be taken from Workers’ Compensation benefits and can garnish workers’ compensation settlements.
  5. A private attorney can pursue past due child support on a percentage fee basis.