Winner of the 2020 Divorce Matters Scholarship Announced
Divorce Matters is proud to announce Sara Vieyra as the winner of the 2020 Divorce Matters Scholarship. Although we had a lot of qualified applicants this year, Sara stood out among them. Our committee was impressed with Sara’s academic involvement, work ethic and empowering essay.
Sara graduated from Arrupe Jesuit High School with a 4.03 GPA and will be attending College of the Holy Cross in Worcester, Massachusetts this fall, which has always been a life-long dream of hers. She will be majoring in English and intends to go to law school after she graduates. Through her internship and accomplishments on Mock Trial as a captain, Sara found her passion for criminal law, and hopes to work for a non-profit law firm after law school to help represent minorities and impoverished communities.
Some of Sara’s achievements and involvement include being an editor for the Atticus Literary and Art Magazine, receiving both the Best Witness award and the Best Attorney award at the Regional Mock Trial Competition, interning at the Denver City Attorney’s Office, and participating with her the Arrupe Girls’ Varsity Soccer Team.
When we asked Sarah what receiving this scholarship means to her and her educational journey she wrote, “One of the main reasons that students don’t go to college is because they can’t afford it and students don’t want to pay off student loans for the majority, if not entirety, of their career. I knew that going to college was going to take a financial toll on my family’s finances, so I educated myself and I took out a loan that would work best for my family and me. This scholarship will alleviate some of my family’s financial burden and will set me up for success financially, professionally, and academically.
I would like to thank the Divorce Matters Scholarship Committee for the grand opportunity they have given me in my journey towards becoming a lawyer!”
It is our honor to award Sara with this scholarship and wish her the very best in her undergraduate education and achieving her goal of becoming a lawyer someday.
We want to thank everyone that applied and wish you all the very best in your academic endeavors!
Do I Need a Will and Powers Of Attorney?
By Attorney Miguel C. Mondragon
Many people believe only married couples with small children and considerable assets should consider an estate plan. In fact, all adults can benefit from a well-crafted last will and testament and power of attorney. These legal documents offer many benefits and allow you to pass assets onto beneficiaries according to your wishes in the event you become incompetent. The most fundamental, and likely the most well-known, estate planning instrument is the last will and testament.
A last will and testament is a legal document that designates who will inherit your assets, when your beneficiaries will receive those assets, who will manage your estate when you die and among other things, name the guardian for any minor children. In the event you die intestate, meaning without a will, your estate will be divided in accordance with the per stirpes laws of Colorado and your children may become wards of the state.
While a last will and testament will ensure your estate and children are taken care of upon your death, a power of attorney will ensure your health care needs and financial assets are managed properly in the event you are declared incompetent and cannot make those decision for yourself. A general power of attorney is a document that grants legal rights and powers by a person, named the principal, to another, named the agent or attorney-in fact, to make decisions on behalf of the principal. The agent has a fiduciary obligation to make decisions based upon the preferences of the principal. A critical component of a power of attorney is ensuring the power of attorney is “durable”, meaning, the power of attorney permits an agent to make decisions for the principal if they become incapacitated.
A general “durable” power of attorney grants the agent authority to manage the finances of the principal in the same fashion as if the principal were making the decision themselves. This means, your power of attorney will have the authority to bank, acquire property, sell assets and manage all your financial and business matters based on your preferences. It is critical that extreme care and caution are used when selecting your attorney-in-fact as there is little to no oversight of their decisions. It is easy for people to confuse the powers granted in a power of attorney verses the powers granted in a conservatorship. Under a power of attorney, the principal retains their rights to make their own decisions alone. An agent only has the power to act along with the principal in accordance with the authorization set forth in the document.
A medical power of attorney authorizes your agent to make medical decisions for you should be unable to do so ”“ for example, if you have become unconscious or mentally incapacitated. This document can become part of an advance healthcare directive. There are many situations that could result in a person being unable to make or communicate medical decisions. These situations can affect not only senior citizens, but younger adults as well. An individual may be rendered unable to make medical decisions as a result of a head injury, stroke, heart attack, mental illness, car accident, or any number of events that can result in a person becoming unconscious, incompetent, or unable to communicate.
A medical power of attorney can be as simple or as complex as the principal wishes to make it. A well-crafted medical power of attorney will cover several scenarios, which include end of life decisions, organ donation and final wishes. Making these decisions yourself and removing this burden from your loved ones is one of the greatest gifts you can do for those you care for and love. However simple or complicated your medical power of attorney is, it is important the documents comply with the Health Insurance Portability and Accountability Act of 1996, also known as “HIPPA”. HIPPA ensures your medical information is kept private as well as allowing your attorney-in-fact to have access to critical medical information.
There are very specific legal requirements, many of which are governed under Colorado’s Probate Code (C.R.S. §15-1-101,et al), that must be closely adhered to ensure your estate plan will be enforceable and survive probate as well as ensuring your power of attorney is upheld. Obtaining competent legal counsel is just as important as the documents themselves. If you or someone you know are searching for an estate plan or a power of attorney, please contact Divorce Matters to be connected with an attorney for assistance.
When Should I Move Out of the House?
When couples decide to divorce, they often can’t stand to be in the same room together. This means one of them ultimately must move out of the house before the divorce in Colorado.
There are many considerations that go into deciding when and whether to move, and we encourage people to meet with a lawyer before packing up a cardboard box and crashing on a friend’s sofa. Often, men leave the home, letting their wife and children stay put, which can be a disastrous decision. Leaving the home sends the signal that your relationship with your children is less significant than your spouse’s, which is a signal some judges hear loud and clear. Below, our Colorado divorce lawyers walk through some of the considerations about how to move out of your home.
What Should I Do Before Moving Out?
Ideally, you will have a written, signed parenting plan that allocates custody. This plan should be sufficiently detailed and will explain where and when you will have the children. So long as parents reached the agreement voluntarily, a judge should enforce it. Without a signed agreement, you have a live custody dispute and moving out of the home can hurt your case.
What Should I Do if I Move?
You should maintain a strong relationship with your children. Follow the parenting plan. If you don’t have one, then visit them often, daily if possible. At a minimum, maintain regular phone contact. Many judges are nervous to depart from the status quo. If you remove yourself from your children’s lives, then a judge might think you are happy rarely seeing your children.
How Do I Get My Spouse to Move Out?
If he or she doesn’t want to move, this is difficult. Some spouses who pay the mortgage think this gives them the right to decide who stays in the home. That’s not the law. You also should avoid threatening your spouse.
Instead, you could offer to pay for the rent to a new place for the duration of the divorce. Be careful, however, if your spouse wants to take the kids. This looks no different than if you moved out of the house. In fact, it probably looks worse, since you are comfortable uprooting your children.
Can I Force My Spouse to Leave?
There are some ways to go about this. If you owned the home before you were married, and it is solely in your name, you might have the power to request that your spouse leave because it is your separate property. Realize, however, he or she might take the children, and this is the primary concern with leaving the home””how it will impact a child custody decision.
If there has been domestic violence, then you can request a protection order and ask the judge to order your spouse to leave. You should also request temporary custody of your children at the same time, otherwise your spouse has an equal right to the children as you do. With a valid protection order, you can call the police to come and move your spouse out. If your spouse refuses, he or she is in contempt of court.
There may be other methods for getting your spouse to move, which you should discuss with an attorney. Contact Divorce Matters to review all your options.
Can I File For Divorce With What’s Going On With The Coronavirus?
With everything going on right now with the coronavirus, what happens if I want to file for divorce?
By: Brooke Shafranek
Moving forward with a divorce during the Coronavirus crisis raises many questions about how COVID 19 will impact your case.
The courts are still open but operating at a limited capacity””there will be reduced staff, and the only cases that will be heard are those related to public safety. New case filings will be accepted through e-filing and at the clerk’s window, but your case may be delayed by at least 60-90 days. Your divorce case will be accepted by the court, and you can begin the process; however, what happens during the course of your case remains uncertain.
The first step is to have an initial consultation with an attorney. To comply with social distancing measures, we offer secure telephone and video consultations with our attorneys to assess your case and keep it moving forward. Due to the crisis, whether or not you retain an attorney will have a major impact on your case.
When you begin a divorce, there is a mandatory initial status conference with the court that must take place before your case can move forward. This initial status conference is not a matter of public safety, and therefore all such hearings are delayed indefinitely. However, your attorney can work with your spouse’s counsel to draft an agreed-upon plan for your case, which will eliminate the need for your initial status conference.
After the initial status conference hurdle is crossed, the parties are still required to attend mediation. Mediation is mandatory in the state of Colorado, and it is a formal meeting where we try to resolve your case. Despite the crisis, mediations are still occurring via telephone and video conferencing.
If your divorce does not involve children, your case may not be delayed as severely if you and your spouse can come to an agreement at mediation. Should you be able to reach and sign a separation agreement, your attorney will assist in requesting that your divorce proceed forward without having to appear in court, whether it be in person, via telephone, or otherwise.
If your divorce does involve children and both parties have counsel, it will be easier to navigate parenting issues during these uncertain times. Access to the court will be delayed, so your attorney will need to get creative in resolving disputes. If only one parent is represented by an attorney, you will be required to attend a hearing and must wait for the court to schedule you in.
During these uncertain times, your attorney will be able to utilize their expertise at navigating the court system to assist you in your divorce and move the process forward with as few delays as possible in ways you may not be able to if you chose to represent yourself.
Announcement: Divorce Matters’ Response to Coronavirus
We are monitoring all coronavirus developments and adjusting our firm’s operations as necessary to protect the health of our clients, employees and the community at large. Effective March 16th we are implementing the following:
- To continue serving our community, our firm is offering secure telephonic and virtual consultation and meeting options during this time.
- Our firm employs technology which ensures that our clients can send, receive and execute documents remotely.
- We have increased routine cleaning and disinfecting of surfaces, equipment, and common work areas like conference rooms and work room areas.
- Additionally, as a precaution, the building has increased surface cleaning throughout common areas. They have also increased cleaning within each individual suite, and will continue to do so in the coming weeks.
What Happens if Divorce Goes to Trial in Colorado?
Many divorces can be resolved amicably, which speeds along the process and is usually less expensive for all involved. However, sometimes divorcing couples cannot agree on certain key terms of their divorce, such as custody or alimony. In these situations, going to trial might be unavoidable. Below, our Colorado divorce lawyers sketch out what happens at a divorce trial in Colorado.
Discovery
The discovery process allows each side to request information from each other and from third parties. In a divorce, we often request bank records or other financial information. Spouses might need to sit for a deposition, where they answer questions under oath, or a judge could order a psychiatric evaluation of each parent to help determine who the children should live with. Discovery can be a lengthy process, taking many months or over a year. For this reason, it can be very expensive.
Status Hearings and Other Court Dates
“Going to trial” is rarely a linear, smooth process. There are many mini disputes that judges need to decide. For example, you might want copies of your husband’s business records but he doesn’t want to cough them up. A judge needs to decide this issue.
There might also be many status hearings where the lawyers come in to tell the judge how the litigation is proceeding. It is also not unusual for the court to set a trial date but for it to be delayed””sometimes multiple times””because the lawyers are busy or the court’s docket is crammed full.
The Trial
In many ways, a divorce trial is no different from other trials. However, there is a key difference””the judge will decide the case. So there is no jury to select.
The evidence presented will depend on what issues are in dispute. Some couples only dispute a few issues””say child custody and the division of marital property””but don’t dispute other issues, like child support. Still other couples dispute everything.
If a judge needs to allocate parenting time (custody), then witnesses can include teachers, babysitters, family, and friends. Evidence might include medical records and school report cards.
It is not unusual for our clients to have to testify, which can be extremely stressful. Also, friends and family might not want to testify but can be forced to. Compelling testimony can often put a strain on a relationship, sometimes permanently.
After hearing all evidence, the judge will usually state that he or she will take the case under advisement and issue an opinion later, usually after a few weeks.
Divorces in Colorado Are Usually Public
Courtrooms are public places, and there must be a very good reason for the judge to close the doors. Anyone can sit in and listen, though most of the people will probably be lawyers and other couples who need to appear before a judge. If you have dirty laundry in your divorce””infidelity, financial mistakes, mental health or substance abuse problems””then that embarrassing information could all come out. If you are a public figure, then expect the press to report on the proceedings.
Discuss whether to Go to Trial with Your Attorney
Divorce trials are rarely ideal, though they are sometimes unavoidable. When your spouse is acting unreasonably, then the smarter move could be to take your day in court. Your Colorado divorce lawyer will help you decide what is in your best interest.
At Divorce Matters, we have handled many trials and guide you through the process. Reach out to a member of our team to schedule your confidential consultation.
Can My Spouse File Divorce in a Different State after Moving?
You might think that a couple must divorce in the state they got married in, but the law says otherwise. Instead, each state sets certain residency requirements that must be met before the courts in their state will assume jurisdiction over a case. If a person meets the requirements, then the court can hear the case and issue a divorce decree. So, yes, it is possible for your spouse to file for divorce after moving to a different state.
Learn the State’s Residency Requirements
In Colorado, one spouse must have lived in the state for a minimum of 90 days before petitioning the court to divorce. This is not a great length of time. The law also allows either spouse to meet the residency requirements, not solely the spouse who files for dissolution of marriage. So a husband can move to Colorado from California, and 90 days later his wife can file for divorce in Colorado even though she is still living in California.
To meet the requirement, a person must be “domiciled” in Colorado for 90 days. Domicile is a legal concept that basically means the person has made their home there and intends to stay. Someone visiting Colorado for 3 months is not domiciled here, and someone who intends to move back to a different state is also not domiciled.
If you live in Colorado and your spouse has moved, you should learn what the requirements are in his or her new home state. For example, in Florida, one spouse must have been a resident in the state for at least 6 months before filing for dissolution of marriage.
Child Custody when a Spouse Has Moved Out of State
A federal law, called the Uniform Child Custody Jurisdiction and Enforcement Act, might prevent another state’s court from deciding custody. This law states that courts in a child’s “home state” have exclusive (and continuing) jurisdiction to decide child custody issues. The law defines home state as the state where the child has lived for 6 continuous months before the petition to dissolve a marriage was filed.
So if your husband moves to Florida and files for divorce there, but the children have been with you in Colorado for the 6 months before he files, then the Florida court will not decide child custody. If your child has not lived in any state for at least 6 months before the court action was filed, then a court looks at which state the child has “significant connections” and substantial evidence of care for the child.
The Advantage of Filing First
If your spouse is the first person to the courthouse, you might find yourself travelling to another state to attend court hearings. This can be expensive and time-consuming. Also, if you miss a hearing, then something could be decided without your presence or input, which is far from ideal. By filing first, the court in Colorado can take exclusive jurisdiction over the entire divorce case.
If you are asking, “can my spouse file for divorce in a different state?”, the legal team at Divorce Matters can help you. Contact us today to schedule a consultation.
What Federal Laws Affect My Colorado Divorce?
Divorce, like marriage, is generally a creature of state law. However, several federal laws will play a key role in how your divorce plays out, as well as the ultimate terms of your divorce settlement. At Divorce Matters, we stay abreast of changes in state and federal laws that affect our clients, so we are well positioned to advise you of your rights. If there has been a change in the law, we are aware of it and can use it to your advantage.
The Tax Cuts and Jobs Act
Before the passage of this federal law, the spouse who made alimony payments could write off the amount on their taxes. This policy changed with the recent amendments to the tax code. Now, the spouse who gets alimony does not need to report it as income on their return. Instead, the spouse who pays alimony must not only pay the amount but pay federal income tax on it.
Consolidated Omnibus Budget Reconciliation Act (COBRA)
Getting divorced often spells the end of health insurance for men and women who are on their spouse’s insurance offered through work. However, the federal COBRA states that spouses can stay on the health insurance policy for a maximum of three years. During this time, though, the spouse is responsible for paying the full premiums, which can make coverage very expensive.
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
Many spouses move and file divorce in a different state. The UCCJEA tries to bring uniformity to determining which state’s court has jurisdiction to hear child custody matters. Before the passage of this law, courts might compete to decide child custody.
Under the law, a child’s “home state” has exclusive jurisdiction over child custody issues. The “home state” is defined as the state where the child has lived for the six months before the divorce or child custody proceedings were filed. So even though your spouse may file for divorce in California, a Colorado court could have jurisdiction over child custody depending on how long the child has lived in this state.
If the child has not lived in a state for at least 6 months before filing for dissolution of marriage, the state with “significant” ties will be the home state. Given how often people move around before and after divorce, the UCCJEA has come into play quite frequently.
Employee Retirement Income Security Act (ERISA)
Congress passed this law to shore up the country’s pension system. Today, the law covers pensions and other employer-sponsored group benefit plans, like health and disability insurance.
ERISA most frequently comes into play when a couple divorces and needs to divide a pension, which is marital property. The plan administrator will only divide the pension if there is an adequate Qualified Domestic Relations Order, or QDRO for short. Without a valid QDRO, a divorcing spouse could end up without the portion of a pension they were expecting, which can harm them financially.
If you have a question about federal laws and Colorado divorce, please schedule a consultation with Divorce Matters today.
How to Remain Objective During Divorce
Divorce is an emotional time. Although some couples are exhausted and welcome the divorce, others feel powerful emotions, including disappointment and anger. It is very easy to lose your objectivity, especially if your spouse has a new boyfriend or girlfriend.
As seasoned divorce lawyers in Colorado, we understand the importance of objectivity. When people are ruled by their emotions, they often try to “strike back” at their spouse or fight every little issue trying to “win” the divorce. Emotional spouses get caught up in divorces that never seem to end and that frequently leave them more bitter than they were when they started.
To remain objective, follow the tips below for avoiding emotional decisions during divorce in Colorado. In addition, you should meet with a divorce lawyer, who can act as a sounding board during this difficult time.
Find an Objective Friend to Bounce Ideas Off
There is nothing more refreshing than the perspective of another person. This should not be someone too close to you, like your mother, who might have always hated your spouse. Instead, choose a friend or a sibling who does not have strong feelings about your mate.
Of course, the person you choose needs to be someone you can trust and someone who truly wants to listen to what is going on. A work acquaintance, for example, might be overwhelmed by all the personal details you are sharing. And hesitate before choosing someone who is also friends with your spouse.
Try Mediation
In mediation, a neutral person listens to each side describe a dispute. The mediator isn’t a judge; however, he or she can often help couples find areas of agreement. A good mediator can also help each side truly see what issues are in dispute and can propose creative ways to work around the issue.
Mediators don’t decide a winner and loser, like judges do. But they can often see things that people who are mired in their emotions cannot.
Lean on Your Lawyer
Your lawyer is your advocate. But a lawyer is also a professional who realizes that the best advocacy needs to be based on objective analysis of the facts and law. If your lawyer is telling you that your chances of getting 100% of the marital property are close to zero, you should believe what they tell you.
A key feature of any divorce is trying to reach a settlement. This often involves “horse trading”””giving up something you want in order to get something else. In our experience, emotional clients who lack objectivity want to give up nothing, which is simply unrealistic. Even at trial, few people get everything they request.
An objective lawyer will also advise you of when to fight and won’t settle just for the sake of settling. For example, if your spouse is abusive, then there is little reason to agree to shared parenting time just to avoid going to court.
Speak with a lawyer at Divorce Matters today. We can take an objective look at your case and advise you about what you will likely walk away from your marriage with.