Frequently Asked Questions
We’ve compiled a list of the most frequently asked questions we receive. If you have an additional question that you can’t find here, please contact us.
Am I entitled to alimony or maintenance?
As of January 2014, Colorado has a new law providing guidelines to judges in awarding maintenance (often know in other states as alimony).
This law provides guidance to judges in awarding maintenance from a higher earning spouse to a lower earning spouse lasting from a third to half the length of the marriage. The basic formula loosely provides for taking 40% of the higher earning spouse and subtracting 50% of the lower earning spouse, which results in the basic monthly maintenance awarded. While many people feel this will simplify maintenance cases, substantial questions remain. Most importantly—what is the potential earning capacity of the spouse seeking maintenance? These decisions are made based on potential income as well as actual income.
Like most areas of divorce law, this statute provides judges with a broad guideline but leaves each judge the freedom and discretion to make different decisions based upon unique circumstances. However, a lower earning spouse will often receive maintenance from the higher earning spouse in a marriage of several years or more.
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Are you GLBT friendly?
I like to consider myself comfortable with people of all sexual or gender orientation. I try to maintain a good working knowledge of issues facing same sex couples.
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Can my ex take our child to another country?
The law permits a court to allow a parent to take a child to another country, either for a vacation, or sometimes for a permanent residence. Sometimes parents choose to clarify in their court ordered parenting plan whether they agree that travel to foreign countries for purposes of vacation or study will automatically be available to their children.
It is important to know that some countries have signed the Hague Convention on Child Abduction, an international treaty to prevent child abduction between countries.
A judge may order on parent to agree to obtain a passport or other necessary travel documents of a child to allow for a vacation by the other. However, every parent has the right to be heard on the question on whether foreign travel or relocation is safe and/or healthy for the child, and to have his or her opinions considered in such a decision.
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Do I have a right to see my grandchild?
Colorado has a law which specifically authorizes a court to provide a grandparent time with grandchildren under some limited conditions. For example, it will not allow the court to force a parent to allow contact between their child and his or her own parents.
The law contemplates a circumstance where someone other than the grandparents’ own child is raising the child such as where one parent has died, or where a son or daughter does not have primary care of the child or even, in some limited circumstances, in adoption. Also the United States constitution gives some deference to the parent’s desires about children’s contact with grandparents. Therefore, in order to obtain grandparent visiting rights, the grandparent must show by clear and convincing evidence why their contact would benefit the grandchildren, to overcome the parents objection.
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Do you accept cases where the parties intend to settle their case by mediation?
I am happy to assist clients through the mediation process. It is often a wise course, and likely to reach the best result for the client. I can often provide a valuable service to advise clients going through this process utilizing a few hours of legal time.
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How does a parties drug addiction impact decisions in a parties divorce or parenting case?
Impact on Parenting cases
One of the most difficult decisions facing judges is the extent to which a parent’s drug or alcohol use impacts that parent’s ability to provide a safe and loving environment for children. Accordingly, there is no easy answer to this question.
The usual starting point for most judges is the basic issue of safety. Is a parent driving a child while under the influence of alcohol or mood altering drugs [even if a drug is prescribed]? The age of the child is a factor in deciding whether drug use threatens child safety. For example, most fifteen year olds know how to get out of a burning home, whereas that cannot be said for a 2 year old.
Generally a parent’s use of drugs or alcohol away from children is not a significant factor. Also parents are usually afforded some leeway in the consumption of legal drugs such as alcohol, and more recently marijuana, in Colorado. Recent case law implies that a judge must make specific findings regarding how a parent’s drug use negatively impacts a child before the court can forbid a parent to use drugs or alcohol. However, regular use of many illegal street drugs such as cocaine, methamphetamine or heroin will almost certainly be seen as a serious drug problem. Also regular intoxication or regular use of any drug to the point that it interferes with a parents functioning may be a significant factor in deciding how much time a child should spend with a parent.
It is not uncommon for courts to restrict parent’s access to children to a supervised setting when the judge is convinced that the use of drugs or alcohol has become harmful to a child.
Impact on maintenance/alimony/child support
Colorado law is based on the “no-fault” standard. For example, the Colorado court of appeals has ruled that a parent’s child support may be reduced, even when a parent loses his or her job due to a failed drug test.
The rationale is that the court must ascertain the earning potential of a party at the time they come before the court. The “no-fault” doctrine prohibits a judge from punishing parties, even for illegal drug use that costs a job. However, a judge may reasonably expect someone with a child support or maintenance [alimony] obligation to make their best efforts to obtain or maintain employment, and could find that a party’s refusal to seek drug treatment in order to maintain employment is a voluntary choice.
Also in the division of marital property, a court might decide that one spouse’s expenditure of extravagant sums on illegal substances or alcohol might be a factor in dividing marital property under the doctrine of “marital waste”.
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I am planning on getting married; why should I consider getting a prenuptial agreement?
My first answer is non-legal. Discussion of a prenuptial agreement raises difficult financial questions. These difficult financial questions inevitably come up between spouses in any marriage. If it is too uncomfortable to discuss these issues prior to a marriage, imagine how much more difficult it will be years into a marriage or, more tragically, at the time of a divorce.
From a legal perspective, prenuptial agreements quickly resolve conflicts that otherwise may drive up large legal bills and create hostility and conflict between divorcing parties. One example is the value of a business, which can easily cost $5,000—$10,000 in expert consultation fees to appraise during the divorce process. Other examples would be issues involving maintenance [alimony] as well as what is or is not considered separate property.
In the absence of a prenuptial agreement, the court will decide the obligations each spouse owes to the other as a consequence of their marriage. Many people prefer to make this decision between themselves.
However, because children have their own individual needs and rights after divorce, there is very little that somebody can put into a prenuptial agreement that will affect issues such as custody or child support.
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I just received a restraining order [temporary protection order], should I fight it?
There are many reasons people legitimately resist or oppose having temporary protection orders made permanent. A temporary protection order is issued by a judge based on the statement of one side, before the other side has the chance to tell their version of the situation.
Having a protection order become permanent may impact rights to own or possess firearms. It is also possible that, in the days of the internet, the existence of a civil protection case may be easily discovered by a prospective employer and limit job opportunities.
A permanent protection order may be amended after two years but the procedure to do so is quite complicated and uncertain.
The two most obvious reasons to resist a protection order are (1) The events stated in the complaint simply are not true or (2) even if certain behavior did occur, it did not rise to the level of violence or threats required by law to constitute domestic violence.
There are other options on the first hearing after a temporary protection order is issued. Both sides may agree to continue it as a temporary order for some extended period of time. It is not uncommon, for example, for a temporary order to be issued at the start of a divorce case but to have the terms relaxed or the entire order ended at a later date.
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I think my child may be the victim of sexual abuse, what do I do?
The first thing a parent in this situation should understand is what not to do. Do not engage in extensive or prolonged questioning of a child. The best thing to do is to contact the local department of social services or an experienced child therapist [I emphasize experience is vital here since the warning signs and symptoms of child abuse are many and difficult to interpret].
It is vital that the child’s outcry or description of abuse be made to a responsible professional. It would be a little bit of an overstatement that a child’s statement to their parent is never believed by the legal system. But there is significant skepticism about statements a child makes to a parent but not to other responsible professionals. There is legitimate research that indicates that the way children describe incidents may be significantly influenced by what they think adults expect to hear.
When discussing any concern of sexual abuse with children, it is extremely important to ask very open-ended questions. Unfortunately, it is often difficult for a parent to obtain enough information to know whether a concern is founded. More unfortunately, after many conversations between a parent and child, the suspected influence of the questioning parent may make it more difficult to protect a child.
The very painful reality for concerned parents is that it is possible to increase the risk of danger to a child by prolonged questioning. While children may feel most comfortable in confiding to the most trusted adult in their life (a parent), it is a tragic irony that too much conversation between a parent and a child actually may result in being harm to that child. Sometimes restraint is the best assistance a parent can give to their child.
*The information given in this answer represents the authors own observations over many years. The extent to which “the system” does or does not appropriately respond to these concerns is hotly disputed. The author has seen situations both where “ the system” has been under protective of children so that abuse is continued for extended periods of time and also where innocent parents have been unfairly blocked from access to their children or suffered other serious consequences wrongfully.
The author respects that there are many valid perspectives that “the court system” is either under or over protective of children. Rather than engage in a philosophical debate on this topic, he intends to provide practical, common sense advice, which is usually a prerequisite for obtaining concrete protection for children.
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I was just arrested for domestic violence; do I need a lawyer?
Yes. Domestic violence charges, even at the misdemeanor level, may lead to a host of expensive and painful consequences. Defendants may not even have been aware that their conduct was illegal at the time [for example, blocking a doorway and insisting that they continue to discuss a marital problem can be grounds for arrest].
Sometimes it is unclear whether physical interactions occur out of aggression, self-defense, or other legitimate situations [i.e. wrestling car keys out of the hand of an intoxicated spouse]. It is important to begin to look at possible defenses immediately and for a defendant to avoid making any statement whatsoever regarding what happened until he or she has consulted with legal counsel.
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I’m not sure if I have been a victim of domestic violence or not?
This is a very difficult question because there are many categories of “abusive” behavior, which may not meet the standard of domestic violence for purposes of a restraining order or impacting parenting decisions by a judge.
For example, it is rare that purely verbal behavior will rise to the legal standard of domestic violence unless acts of violence or revenge are involved. However, a number of actions, which may not appear to be domestic violence at first impression, may be factors or evidence of domestic violence to a judge. Some examples: (1) Repeated phone calls may be considered harassment for purposes of both criminal charges and a protection order. (2) It is unlawful to take someone’s car keys to prevent them from leaving a home or to block a doorway to prevent them from leaving a room they wish to leave. (3) Breaking someone’s property in anger, harming a family pet or a number of other similar behaviors may constitute domestic violence.
The wisest choice for someone who thinks he or she may be a victim of domestic violence is to consult a community advocacy organization or to contact a lawyer with specific knowledge in this area.
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I’ve been living with my partner for 4 years, we are splitting up, do I have to get a divorce?
Colorado law recognizes the doctrine of common law marriage between a man and a woman [there is no such thing as same-sex common law marriage in Colorado law].
There are many misconceptions about what does or does not make a common law marriage. The most important factors in whether a common law marriage has been created are (1) whether the parties intended to be married and (2) whether they have lived together. Other factors are really just ways of proving whether the parties did or did not consider themselves to be married. Examples of behavior which might show this intention to be married include filing joint tax returns, owning property together, joint bank accounts, wearing wedding rings, etc. The decision is usually based on a combination of one or more of these or other factors.
A common law marriage is simply an alternative route to getting married instead of obtaining a civil marriage license. There is no such thing as common law divorce. If a common law marriage has been formed, the only way to obtain a divorce is to file for dissolution of marriage through the court system.
If you have created a common law marriage, there can be enormous future consequences which may not be clear at the time of separation. The existence of a common law marriage may impact the ability to inherit property or receive life insurance proceeds; as well as other financial obligations such as maintenance and division of marital property. For these reasons, if there is any doubt as to whether one has entered a common law marriage, it is very wise to consult with a lawyer at the time a relationship ends. A mistake in assuming there is no common law marriage can have devastating lifelong consequences.
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Is it true that i have to pay taxes on my maintenance [alimony]?
For maintenance Orders entered during 2018 or before, normally, yes, maintenance [alimony] is taxable income to the party receiving it and a tax deduction to the party paying it. Based on the 2017 federal tax law changes, this changed. For maintenance orders entered after 2018 (i.e., from January 2019 thereafter) maintenance is no longer be tax deductible to the payer or taxable income to the recipient. If a maintenance order entered 2018 or before is modified, maintenance retains its tax deductible status (i.e., deductible to payer, taxable to payee) unless both parties agree in writing at the time of the change that it should no longer be deductible to the payer or taxable to the payee.
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My 14 year old doesn’t want to spend time with my ex. Does the teen have rights?
Colorado law requires the court to make parenting decisions based on the best interest of the child. A parent has a constitutional right to reasonable parenting time with a child unless the court is shown clear and convincing evidence that unrestricted parenting time would pose a physical danger to the child or would substantially impair his / her longtime emotionally or psychologically.
It is important to note that reasonable parenting time does not mean equal parenting time. There is no set age in Colorado law where a child has a right to decide which parent he / she wishes to live with most of the time. However, the wishes of the child are one factor in this decision. The weight a child’s wishes may count depends on the particular judge making the decision.
Often the older a teen is, the more weight a judge will place on his or her wishes. Exceptions may lie in circumstances where one parents lax requirements or discipline may not be in the child’s best interest [such as no curfew, no expectation of homework, permissive attitudes towards alcohol/drug use by the teen, etc]. Also, a judge may feel that a teen’s judgment or wishes is clouded by the influence of the other parent [the term ‘alienation’ is often used for this type of influence].
A judge will usually refuse to have a child of any age, even a teen, testify in court. Most judges also refuse to speak to a teen in their private chambers (or office). This is not because no one cares how a child or teen feels about the situation. It is because most judges feel that the professionals they appoint as Child Family Investigators or Parental Responsibilities Evaluators are better qualified to speak to minors sensitively about their preferences, and that these conversations are better conducted away from the court house.
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My child is not yet 19, but is out of high school and working—Do I still have to pay support?
Emancipation is a more difficult question for a child who is employed but who is living at home with a parent. Parties may obligate themselves by a written agreement entered with the court to support children through college. Absent an agreement, the court may not order child support to continue for college past the age of 19. Also, if a child is disabled to the extent that they are unlikely to be able to support themselves, child support may be extended if the motion is filed prior to the age of 19. However, once the child supports terminates, it is not possible to later return to court to extend the order if an adult child becomes disabled.
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My ex has been living with a partner for the past 4 months, do I have to keep paying maintenance?
Traditionally, the answer to this question has been yes. The obligation to pay maintenance has not terminated in Colorado just because either the payer or recipient is in a new relationship. This is confusing to people because maintenance does automatically end if the recipient remarries [although a remarriage by the payer does not limit the obligation to pay maintenance].
There are circumstances in which the recipient of maintenance is supported by a new “significant other” to the extent that this might end their need for maintenance. For anyone contemplating moving in with a significant other while receiving maintenance or whether to file a motion to termination maintenance, the advice of an experienced lawyer is invaluable.
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My ex owes me child support; what can I do to collect?
One useful option is to seek the services of the child enforcement agency, which is a part of each county’s Department of Human Services. Although they often are slow because of a large caseload, they have tools at their disposal such as seizing tax returns, suspending drivers and/or professional licenses, which are unavailable to lawyers. However, once a child is emancipated, they will not pursue collection of past due child support.
Also, there are unique circumstances, such as proving under the table income or other financial circumstances which they may be unable or unwilling to pursue. In such cases, private legal counsel is probably a better choice.
Sometimes, a parent who owes substantial child support may come into an inheritance or lottery winning or some other large amount of money from which child support can be collected. It is important to know that unpaid past child support carries statutory interest of 12% each year, which can mean a long unpaid child support debt may accumulate interest above the original amount owed in a surprising amount of time.
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My oldest child just turned 19; does my child support automatically decrease?
The obligation to support a child in Colorado terminates when the child is 19 [unless the child remains in a secondary education program past age 19] or is emancipated. Often that leads a parent paying support for several children to think they can automatically deduct a portion of their child support once the child turns 19. That is incorrect.
Co long as a child support order continues to exist for younger siblings of a child who turns 19 or is otherwise emancipated, it is necessary to file a motion requesting modification of support.
However, child support does automatically terminate when the criteria are met and the child support order only covers one child. Examples for emancipation include but are not limited to a child who is married prior to age 19 or who is fully self-supporting [a good example of this is a child who entered the armed forces].
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What is mediation? How is it different from arbitration?
Mediation is the attempt to settle a legal dispute through active participation of a third party (mediator) who works to find points of agreement and encourage those in conflict voluntarily agree on a fair result.
Mediation differs from arbitration, in which the third party (arbitrator) acts much like a judge in an out-of-court, less formal setting but does not actively participate in the discussion. Mediation has become very common to resolve domestic relations disputes (divorce, child custody, parenting time) and is often ordered by the judge in such cases. Mediation also has become more frequently utilized in contract and civil cases. Mediators do charge for their time, but the financial cost may be less than fighting the matter out in court and may achieve early settlement and the peace of mind that comes with settlement. However, mediation does not always result in a settlement.
Statements made in mediation are confidential and normally may not be repeated in court. Mediation is voluntary in the sense that parties are able to break off discussions at any point. Mediation can occur with the parties in one room [with or without their lawyers present] or in separate rooms with the mediator going back and forth carrying messages and positions.
In arbitration, authority is given to a third party to make a final decision if the parties themselves cannot agree. Most aspects of family law cases can be arbitrated outside of court, if both parties agree, with or without lawyers involved.
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What rights do I have in my exes pension and retirement accounts?
Portions of a pension or retirement account, which have accumulated (either by contributions, or passive increase in the value of invested assets) during a marriage, are considered to be marital property. These may be divided by a judge as part of a divorce or by the parties as part of a divorce agreement.
The law permits all or portions of plans such as IRAs and 401ks to be transferred as part of a divorce outcome without incurring tax or penalty for withdrawal. The law also permits fixed retirement plans such as Colorado public employees retirement association benefits [PERA] to be divided as those benefits are paid out over the lifetime of retirement.
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Why do I need a lawyer when so many forms and so much legal research is available online?
Often websites are out of date. The law changes is constantly changing both year by year as the Colorado state legislature passes new laws as well as month by month as the Colorado Courts of Appeals and the Colorado Supreme Court issue new opinions interpreting the law.
While the forms on the Colorado court website are very helpful and informative, they may also be quite limited. They do not address every issue that can be presented to a court and they give very limited options to parents who are looking for a detailed parenting plan or separation agreement. They also do not explain legal consequences of how the forms are filled out. State forms do not explain the differences between taxable and non-taxable maintenance, modifiable or non-modifiable maintenance, etc. It is not unusual for people to be completely unaware of legal consequences of the forms they have filled out, to their later dismay.
Perhaps more importantly, once the details of the law are clear, lawyers are able to help determine how a judge is likely to apply the law. For example, I am often asked whether there is some certain age that children get to determine which parent they live with. Not only is there no such age, every judge has his or her own opinion as to how much a teenager is entitled to be a part of this decision. Thus, a working knowledge of how judges make their decisions in real life situations is important in predicting the outcome any person’s real individual circumstance. Experience is indispensable to the ability to predict the outcome of a case. Lawyers have awareness of questions to ask which may never have occurred to many clients, and fully explain the consequences which may flow from which boxes are checked, etc.
Ultimately, information on the Internet is based on average circumstances; however, few people’s lives are truly average.
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Will I have to pay maintenance after I retire?
Usually retirement accounts are treated as a martial asset or property, and divided at the time of a divorce. There are some circumstances where a retiree might have to pay maintenance, however, depending upon a number of circumstances.
The law generally does respect people’s right to retire and no one is expected to continue working after the normal age of social security retirement solely to earn money to pay maintenance.
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Will my ex’s porn habit affect the time he spends with our child?
It will probably not so long as the pornography is kept away from the child.
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