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ISSUE 279
CHILD SUPPORT By Christopher C. Meyer © August 2006 Child support is calculated according to the Colorado Child Support Guidelines. The amount of child support is a mathematical calculation based on many factors – the major factors being the gross income of each parent, the number of children, and the number of overnights the children spend with each parent. The basic child support amount is adjusted by various factors such as the cost of health insurance for the children. The following two examples are illustrative: Ex.1 – Father’s monthly gross income is $4,000 and he pays $250 per month for health insurance for two children. Mother’s gross income is $2,500 per month. The children spend approximately 50% of overnights with each parent. Father must pay $121 per month to mother for child support. Ex.2 – Same as Ex. 1, except children spend only 22% of overnights with father. Father must pay mother $666 per month for child support. A court can deviate from the guideline amount of child support, but must have good reasons for doing so. Child support is an obligation of the parent(s) to support the child(ren). Parents cannot contract to pay no child support. A Court will not approve such a contract absent very unusual circumstances. Child support terminates when a child reaches age 19 or is emancipated. There are exceptions to the age 19 limit if a child is still in high school. Child support can be modified if the modification would result in a 10% or greater change in the amount of child support to be paid. Failure to pay child support cannot be used to deny a parent visitation (parenting time) with a child. Child support law is the same as other law. You must remember that: you may not understand the law; you may not like it; and you may not think its fair; but it’s the law! Chris Meyer is an attorney practicing family law in Monument. Chris has been practicing law since 1977. He is a former prosecutor and is licensed to practice law in Colorado, Florida, California and Wisconsin. Chris can be contacted at 719-488-9395. Chris’s website (www.cmeyerlaw.com) has a lot of divorce and family law information. ISSUE 281
ANATOMY OF A DIVORCE CASE I By Christopher C. Meyer © August 2006 This article presents the structure of a typical divorce case in Colorado. It provides a general summary of the different steps involved in the Court process. Your case may be different depending on various factors such as whether the parties are represented by lawyers. A divorce case is a lawsuit similar to other lawsuits such as negligence for an automobile crash injury. However, instead of a plaintiff and a defendant, there is a petitioner and a respondent; and, instead of a complaint, there is a petition. The petition requests that the court enter an order, a decree, for divorce. The respondent files a response to the petition. Once the petition is filed with the court, the court has jurisdiction (power) over the petitioner. Once the petition and a summons are served on the respondent, the court has jurisdiction over the respondent. The respondent can be served in three ways. The most common are personal service by a process server – a deputy or other process serve gives a copy of the summons and the petition, or the respondent signs a waiver and acceptance of service. If the respondent can’t be located, service by publication is the alternative. Once the petition has been filed and the respondent has been served, the court cannot divorce you until a minimum of 90 days have passed. One the petition is filed and the respondent is served, an automatic injunction goes into effect that prevents the parties from doing things like taking the children out of state without the consent of the other party or an order of the court. The automatic injunction also prevents doing other things without the other party’s consent like transferring marital property or canceling health, auto, or life insurance. So, your case has been filed and the other party has been served with the paperwork. You now have a court case. The next step is an initial status conference. The purpose of the initial status conference is for the court to take an active role in managing the case. Think of the initial status conference as the first hearing in your case. The Court will give order regarding things like future scheduling and the exchange of financial information between the parties. The exchange of financial information between the parties is critical to the whole process. The law provides for mandatory disclosure. The idea is that the parties and the court can make the best decision only if they have complete and accurate financial information. Don’t even think about withholding relevant financial information. If you are dishonest, your credibility will be lost and you may be subject to other sanctions. Chris Meyer is an attorney practicing family law in Monument. Chris has been practicing law since 1977. He is a former prosecutor and is licensed to practice law in Colorado, Florida, California and Wisconsin. Chris can be contacted at 719-488-9395. Chris’s website (www.cmeyerlaw.com) has a lot of divorce and family law information. ISSUE 282
ANATOMY OF A DIVORCE CASE II By Christopher C. Meyer © August 2006 This article continues the overview of a typical divorce case. The case has been filed, and the respondent has been served with the summons and a copy of the petition. A response to the petition has been filed, and an initial status conference has been held. The parties have 40 days after the filing of the petition to prepare and exchange financial information such as financial affidavits, pay stubs, and tax returns. The parties may request a temporary orders hearing. Temporary orders may be necessary if the parties cannot agree on how to handle matters pending the resolution (final orders) of the case. The court may require the parties to try to settle their temporary differences before it will grant a temporary orders hearing. Most cases do not require a temporary orders hearing. If the parties are in total agreement on all matters, the case can now proceed to final orders. However, the Court must wait 90 days from the filing of the petition and service on the respondent before it can issue final orders. If the parties are not in total agreement, the Court will require the parties to mediate their dispute before the Court will hold a trial to settle any differences. Mediation is a process where a trained third party attempts to help the parties to settle their differences. It is a voluntary process. The mediator does not make decisions for the parties. The parties make their own decisions. Most cases are resolved by the parties. Whatever the parties cannot agree on, the Court will decide at the trial (the final orders hearing). The final hearing is held by the Court without a jury. However, all the rules of court regarding trials apply (rules of evidence, etc.). Before the Court will issue the final orders, the parties must have filed financial affidavits and a certificate stating that the parties have provided mandatory disclosure of their finances. If children are involved, the parties must have attended the parenting class and provided the court with a proposed parenting plan. The procedure you must follow to get a divorce is the same as other law. You must remember that: you may not understand the law; you may not like it; and you may not think its fair; but it’s the law! Chris Meyer is an attorney practicing family law in Monument. Chris has been practicing law since 1977. He is a former prosecutor and is licensed to practice law in Colorado, Florida, California and Wisconsin. Chris can be contacted at 719-488-9395. Chris’s website (www.cmeyerlaw.com) has a lot of divorce and family law information. ISSUE 289
DEBTS IN DIVORCE By Christopher C. Meyer © May 2007 How are debts handled in a divorce? Debts are handled in the same manner as assets in terms of classification as separate or marital. If the debt is marital, it will be divided between the parties. If the debt is separate, it is the sole responsibility of one of the parties. What happens if one of the parties fails to pay the portion of the marital debt they have been ordered to pay? There are two aspects to this problem. From the creditor’s perspective, it does not matter that one of the parties has been ordered to pay. The creditor can still go after the other party for the whole marital debt. This is due to the contract clause of the United States Constitution. The contract clause prohibits states from “impairing the obligation of contracts.” From your perspective, you will be required to pay. This may seem unfair, but it’s the law! If you get stuck having to pay what your former spouse was ordered to pay, you do have a remedy. You can go after your former spouse and make them pay. This process is called “indemnification”. However, you can’t get blood from a stone, and your credit rating can get clobbered. All you may wind up with is an uncollectible judgment against your former spouse. Welcome to the marriage zone! A way to avoid the deadbeat former spouse (DFS) syndrome is to construct your settlement so that as much debt as possible is paid off from the marital assets. Another method is to have the other party refinance the debt to have you removed from it. This often happens with regard to mortgages on homes. Insurance should also be considered for security purposes if you are concerned that the other party won’t be around to make all the payments. It pays to give some thought to protecting yourself from a deadbeat former spouse before you get divorced. The debt you rightfully thought was someone else’s responsibility can rise up and bite you. Chris Meyer is an attorney practicing family law in Monument. Chris has been practicing law since 1977. He is a former prosecutor and is licensed to practice law in Colorado, Florida, California and Wisconsin. Chris can be contacted at 719-488-9395. Chris’s website (www.cmeyerlaw.com) has a lot of divorce and family law information. ISSUE 292
PATERNITY By Christopher C. Meyer © May 2007 Challenging the paternity of a child in a family law case involves such basic issues as whether junior really is junior. If you are concerned that you may not be the actual biological father of a child, you should address this concern at your earliest opportunity in the legal proceeding you are involved in. This opportunity typically arises in a child support case or a divorce case. To understand the law of paternity it is important to understand that there are strong policy reasons that favor a finding that your are the father. The strongest reason is to make sure that a father is available to support the child in order to secure the health, welfare, and happiness of the child. Another strong policy reason favoring paternity is the finality of judgments. People should be able to understand their rights under a judgment and should not have to worry about future events changing their rights. If you are involved in a child support case or a divorce case and you don’t raise the issue of paternity in that case, you will be determined to be the father. There is nothing you can do about it later, even if it is scientifically determined at a later date that you are not the father! For example, you are involved in a child support case. You do not raise the issue of paternity, because you mistakenly believe that you are the biological father of the child. The Court orders you to pay child support. More than six months pass after the order is entered. You then discover as a result of genetic testing done for some medical reasons that you are not the biological father. You cannot successfully fight your paternity of this child in a legal action. Legally, you are the father and that is that. Paternity law is like any other law. You must remember that: you may not understand the law; you may not like it; and you may not think its fair; but it’s the law! Chris Meyer is an attorney practicing family law in Monument. Chris has been practicing law since 1977. He is a former prosecutor and is licensed to practice law in Colorado, Florida, California and Wisconsin. Chris can be contacted at 719-488-9395. Chris’s website (www.cmeyerlaw.com) has additional divorce and family law information. ISSUE 294
PLANNING FOR DIVORCE By Christopher C. Meyer © June 2007 What should you do when you have exhausted all alternatives, such as counseling, and despite your best efforts, you are headed for divorce? What preparations are advisable when you are getting ready to leave the marriage zone and head out for the single life? In terms of preparation, it is useful to think ahead and to imagine what your life will be like once you are divorced. For example, as a single person, you will need to have credit in your name. You might as well get started on getting credit solely in your name. You also want to get rid of joint credit with your spouse. This is especially true if you are a victim of DSS (Deadbeat Spouse Syndrome). So pull down your credit report and get to work: get rid of unnecessary credit cards; close as many joint accounts as you can, including bank accounts. The ideal divorce results in no joint debt or joint accounts after the divorce. You don’t want your ex-spouse to be able to mess up your credit after the divorce. If you are unemployed or underemployed, the odds are you are going to have to contribute to your support - so get going! Take an inventory of your skills, think about what you enjoy doing, and explore the job market. The most effective method of job hunting is net- working; let folks know you are looking for work. Judges are hardworking, self-made people. They appreciate folks who are trying to make it on their own. Put off any big financial moves, like buying a house. Try to keep things simple. Remember that you will have to undo joint properties and debt in the divorce. Beware of incurring additional debt. If you need a car, don’t get one that includes a lot of debt. If you want to keep the car after the divorce, you are going to get the debt that is associated with it. Keep in mind that there are certain actions you can take before the divorce is filed that are subject to an automatic temporary injunction after the case is filed. For example, after the divorce is filed, your ability to transfer or dispose of marital property is restricted, except in the usual course of business or for the necessities of life, without the consent of your spouse or an order of the Court. The same is true for taking your minor child out of the state. If divorce is unavoidable, be prepared, and good luck with your new single life as you leave the marriage zone! Chris Meyer is an attorney practicing family law in Monument. Chris has been practicing law since 1977. He is a former prosecutor and is licensed to practice law in Colorado, Florida, California and Wisconsin. Chris can be contacted at 719-488-9395. Chris’s website (www.cmeyerlaw.com) has additional divorce and family law information. ISSUE 297
NO FAULT DIVORCE By Christopher C. Meyer © July 2007 Colorado is a “no fault” divorce State. “No-fault divorce” means that in order to get a divorce decree from a Court you do not have to prove that the other party (your spouse) did something wrong, such as mental cruelty, physical abuse, or adultery. There are states that still require proof of fault in order to grant a divorce decree. In Colorado to get a divorce all you have to prove is that your marriage is “irretrievably broken”, and that one of the parties has been domiciled in Colorado for at least 90 days immediately prior to the filing of the petition for divorce. Proving that your marriage is irretrievably broken is simply a matter of stating that this is the state of your marriage. Even if the other party disagrees that your marriage is so broken, you will still get your divorce. However, a Judge might require you to try counseling before the divorce will be granted. Please remember that counseling is almost always a good idea if you are headed for a divorce. The phrase “irretrievably broken” is interesting in itself. You may be asking yourself, “shouldn’t that be irreparably broken?” I agree with you, but who are we to argue with the legislature? That Colorado is a no-fault divorce state does mean that fault cannot play a role in a divorce case. Fault can become relevant if it is “economic fault.” “Economic fault” does not refer to making bad investments. It is the kind of fault that will be considered to be a dissipation of marital assets. For example, losing the bulk of your retirement investments in the dot com debacle is not economic fault. If you were making these investments while you were under the influence of illegal substances, that might be another story. However, buying jewelry for your lover or gambling away your paycheck is economic fault, and you will be held accountable for such dissipation of marital assets. Divorce law is like all law. You must remember that: you may not understand the law; you may not like it; and you may not think its fair; but it’s the law! Chris Meyer is an attorney practicing family law in Monument. Chris has been practicing law since 1977. He is a former prosecutor and is licensed to practice law in Colorado, Florida, California and Wisconsin. Chris can be contacted at 719-488-9395. Chris’s website (www.cmeyerlaw.com) has additional divorce and family law information. ISSUE 306
CHILD CUSTODY By Christopher C. Meyer © August 2007 Colorado no longer uses the term “Child Custody”. Instead, such matters are referred to as “Parental Responsibilities”. Parental Responsibilities are divided into “Parental Decision Making” and “Parenting Time”. In all cases involving children a “Parenting Plan” must be submitted to the Court. A Court will approve the Parenting Plan if it is in the ”best interests” of the child. The parenting plan must include provisions for parental decisionmaking and parenting time. Parental decision-making involves decisions that affect the child such as where the child goes to school, what church the child attends, what doctor the child sees, etc. Parental decision-making can be joint or sole. Parents usually agree on joint decision-making. Even if parents cant’ agree on much, they usually can agree on what is best for the child. Joint decision-making involves the parents consulting with each other and coming to an agreement about what action is in the child’s best interests. Sole decision-making authority may be appropriate in unusual circumstances involving, for example, one parent’s absence or severe mental illness. Parenting time is an area where parents often have trouble determining what is in the child’s best interests. A child ‘s best interests regarding parenting time is not merely a competition between parents to see who can win the most parenting time. It is becoming common for Courts to give equal parenting time to both parents, even with very young children. It is diffi cult to argue against a child’s spending as much time as possible with both parents. If parents cannot agree on parenting time, a Court may appoint a parenting time evaluator who will investigate and report to the Court with a recommendation as to the child’s best interests. The evaluator must meet certain standards and is usually a mental health professional (psychologist). One of the best things you can do to show that you are serious about parenting time is to meet your child support obligation. Child custody law is the same as other law. You must remember that: you may not understand the law; you may not like it; and you may not think its fair; but it’s the law! Chris Meyer is an attorney practicing family law in Monument. Chris has been practicing law since 1977. He is a former prosecutor and is licensed to practice law in Colorado, Florida, California and Wisconsin. Chris can be contacted at 719-488-9395. Chris’s website (www.cmeyerlaw.com) has additional divorce and family law information. ISSUE 307
MEDIATION By Christopher C. Meyer © September 2007 Mediation plays an important role in most family law cases. If you and the other party cannot agree on all the issues in your case, the Court will require that you attend a mediation before the Court will hear your case. So, it is important to know what mediation is and what it can do for you. Mediation is a process involving an objective third party who attempts to help the parties reach a voluntary resolution of their issues. The mediator’s goal is to get the parties to reach an agreement on some or all of the issues. The mediator is neutral and does not take any side in a dispute. Mediation is not arbitration. Arbitration is a process that involves an objective third party who actually decides the issues between the parties. An arbitrator is like a private Judge. It is important to emphasize that mediation is a voluntary process. While the Court may order you to attend a mediation, it is up to you and the other party whether or not a complete or partial settlement can re reached. Mediation is a very effective mechanism for resolving disputes. Courts require mediation before they are willing to hear your case because it reduces the time spent on hearings. You may wonder why a mediator is needed if both parties are represented by attorneys. The mediator can still be valuable by providing a different perspective on the issues. Some people need to hear the hard facts from someone other than their attorney. Mediators are trained professionals. In the family law context most mediators are also attorneys with extensive family law experience. You should also be aware that there is a hybrid process called mediation/arbitration (med/arb). A med/arb starts out exactly like a mediation. However, if the parties can’t reach a complete settlement as to all their issues at the end of the mediation, the mediator switches gears and becomes an arbitrator and makes a decision as to any remaining issues. The med/arb model is becoming more popular. Whether the parties choose to adopt the med/arb process is voluntary. A med/arb will typically involve significantly less litigation cost than a mediation followed by a hearing before a Judge. In the Marriage Zone, mediation is your friend. You should embrace the opportunity to try to settle your case. Parties are usually more satisfied with a settlement they have mutually arrived at compared to a ruling imposed by a Court. Chris Meyer is an attorney practicing family law in Monument. Chris has been practicing law since 1977. He is a former prosecutor and is licensed to practice law in Colorado, Florida, California and Wisconsin. Chris can be contacted at 719-488-9395. Chris’s website (www.cmeyerlaw.com) has additional divorce and family law information. ISSUE 311
LEGAL SEPARATION By Christopher C. Meyer © October 2007 If you want to part ways with your spouse in Colorado, there is an alternative to a divorce – legal separation. A legal separation involves a court proceeding that is, for all practical purposes, identical to a divorce proceeding. The results of a proceeding for legal separation and a divorce proceeding are also very similar. The parties’ assets and debts are divided, and all child-related issues are resolved. The big distinction between a divorce and a legal separation is that the divorce decree allows you to enter into a new marriage. A decree of legal separation does not permit you to enter into a new marriage, because you are still married. Another distinction between a divorce and a legal separation involves the permanence of the decree of legal separation. As soon as 6 months after the decree of legal separation is granted, if either party wants to have the decree of legal separation automatically converted into a decree of divorce, all that party has to do is file a motion with the Court and the request to have the legal separation converted into a divorce will be automatically granted. The legal separation really only lasts as long as the parties want it to. Why would someone want a legal separation? Some folks find a legal separation psychologically appealing since it does not involve an absolute end to the marital relationship. Others may prefer the legal separation concept for religious or ethical reasons. The main attraction of a legal separation, and the usual reason some people opt for the legal separation over a divorce, is that a legal separation may permit one spouse to retain spousal benefits from the other spouse such as health insurance coverage. However, it is important to keep in mind that health insurance coverage is a contractual relationship between the other spouse and that spouse’s benefit provider. A court cannot interfere with this contractual relationship due to the contract clause of the United States Constitution. You should not assume that you will be able to retain your spousal benefits if you get a legal separation. You should investigate whether the contract between your spouse and the benefit provider will permit you to retain your eligibility if you get a legal separation. Do not confuse legal separation with simple separation. Legal separation is just like a divorce except for the distinctions mentioned above. Simple separation means that you are no longer living together as man and wife. If you are married, simple separation does not create or extinguish legal obligations. If you are parting ways with your married spouse, the only way to avoid future financial or parental complications is to get a divorce or a legal separation. If you aren’t concerned about getting remarried, a legal separation will accomplish your goals, but it can be automatically converted into a divorce whether you want it to or not. Good luck to you if you are contemplating leaving the Marriage Zone, and remember that there are two exits: legal separation and divorce. Chris Meyer is an attorney practicing family law in Monument. Chris has been practicing law since 1977. He is a former prosecutor and is licensed to practice law in Colorado, Florida, California and Wisconsin. Chris can be contacted at 719-488-9395. Chris’s website (www.cmeyerlaw.com) has additional divorce and family law information. ISSUE 316
HOW LONG DOES IT TAKE TO GET A DIVORCE? By Christopher C. Meyer © November 2007 When I speak to someone who is interested in getting a divorce or a legal separation, one of the first questions they ask is: how long will it take? It is human nature that after making the difficult decision to get a divorce or a legal separation, people want the desired results to occur as soon as possible. The theoretical shortest amount of time it will take to get your divorce or legal separation is 91 days from the time your case is filed with the Court. The Colorado Legislature has passed a law that requires the judges to wait 90 days after the case is filed before they can issue your divorce decree or decree of legal separation. There are no exceptions to this rule. There is no way around this rule. I don’t know the exact reason for the 90-day waiting period. However, I can speculate that the Legislature felt it was wise to provide a waiting period to prevent people from making impulsive decisions regarding such serious arrangements as marriage. How long your case will take depends upon you and your spouse. If you and your spouse cooperate and agree as to all the financial and parenting aspects of the case, your case may only take 91 days until the decree is entered. The more assets and debt that you have, and the more complicated your financial arrangements are, it is likely that your case will take longer to resolve. Assembling all the information, getting all the expert input, and deciding how to resolve the issues are likely to take longer than 90 days, even if you wind up agreeing on everything. Similarly, wrangling about parenting issues can add significantly to the duration of your case. It is important to remember that anything that you and your spouse can’t agree on, the judge will ultimately have to decide at a hearing. Judges are very busy, and getting time for a hearing will usually place you well past the 90-day waiting period. Absent unusual circumstances, your divorce or legal separation, however complicated it may turn out to be, should not take more than a year to complete. If you want your case completed as soon as possible after the 90-day waiting period has expired, you need to be organized and willing to cooperate with the other party. Good luck as you contemplate leaving the Marriage Zone, and remember that there is just no getting around the 90-day waiting period. Chris Meyer is an attorney practicing family law in Monument. Chris has been practicing law since 1977. He is a former prosecutor and is licensed to practice law in Colorado, Florida, California and Wisconsin. Chris can be contacted at 719-488-9395. Chris’s website (www.cmeyerlaw.com) additional divorce and family law information. ISSUE 329
MILITARY DIVORCE By Christopher C. Meyer © February 2008 There are so many people in the military in our area that divorces involving military personnel are commonplace. There is a popular misconception that divorces involving military personnel are different from civilian divorces. In fact, the differences between military divorces and civilian divorces are not very significant. If you are in the military, and if you and your spouse have lived in Colorado for more than 90 days and your children have been here for more than six months, a Colorado court can divide your property and debts, determine whether maintenance (alimony) is appropriate, and make all decisions regarding parental responsibilities (parental decision-making and parenting time). Military pensions are divided much the same as civilian pensions. There is another popular misconception that unless the spouse of the military service person has been married to the service person for at least ten years, the non-military spouse cannot receive part of the service person’s pension. Ten years is significant only in that the military will not pay part of the pension to the non-military spouse unless the ten-year requirement is met. This means is that if the marriage is less than ten years, the Court will order the service person to pay part of the retirement directly to the non-military spouse, rather than the military itself making the payment. Some people in the military believe that they can convert part of their pension to disability and avoid paying part of the disability to the non-military spouse, thereby reducing the total amount the non-military spouse gets. It is correct that the Court cannot divide the disability. However, the Court can adjust the division of the pension or adjust the maintenance or property award to make up for the difference, so that the total amount awarded to the non-military spouse is not diminished by the disability. If you are legally separated from a military spouse, you are still eligible for the same benefits you enjoy if you are married. This scenario is an example of a good reason to look into a legal separation in Colorado, rather than getting a divorce. If you have been married to a person in the military for twenty years while the military spouse has been active service for twenty years, you retain your military benefits such as health insurance, etc., even if you get a divorce. Good luck with your military divorce or legal separation as you leave the marriage zone, and don’t believe all that you hear about additional complications. Chris Meyer is an attorney practicing family law in Monument. Chris has been practicing law since 1977. He is a former prosecutor and is licensed to practice law in Colorado, Florida, California and Wisconsin. Chris can be contacted at 719-488-9395. Chris’s website (www.cmeyerlaw.com) has additional divorce and family law information. ISSUE 338
GRANDPARENTS RIGHTS By Christopher C. Meyer © April 2008 Everyone appreciates and respects what grandparents do for their grandchildren. There are a significant number of grandparents who are parenting their grandchildren. It is regrettable that so many parents have abdicated their role, but we are all fortunate that there are grandparents who are willing and able to take over. All of the grandparents that I am familiar with who are raising their grandchildren would rather be grandparents then parents. They are taking on the parental role until the parents are willing and able to assume their parental responsibilities. Whenever the government becomes involved in children’s lives and custody is an issue, grandparents are an obvious choice as caregivers. Whenever there is or has been a child custody case or a case concerning the allocation of parental responsibilities relating to a child, the grandparents of that child may request an order granting reasonable visitation time. The court will determine if such visitation is in the child’s best interests. Under certain circumstances, grandparents may file a petition requesting that they be allocated parental responsibilities with regard to a grandchild. These cases involve situations when the grandparents have had physical custody of the child for an extended period of time, or when the case is commenced when the grandchild is not in the physical care of one of the child’s parents. The court may also permit grandparents to intervene in a case involving the allocation of parental responsibilities with regard to a grandchild. In all these circumstances, a court will evaluate the grandparents’ fitness as caregivers as well as the child best interests. In situations where one or both of the parents are fit and able to carry on their parental responsibilities, grandparents have no rights with regard to the grandchildren where there is not or has not been any child custody case involving the grandchild. In the United States Supreme Court case of Troxel v. Granville (2000), the Court stated that parents have a fundamental liberty interest in the care, custody and control of their children. The Court went on to state that if a parent is a fit parent, the government will normally not interfere in a parent’s decision-making process with regard to their child. This means that courts will not get involved in disputes between fit parents and grandparents with regard to grandparent visitation. As a practical matter, this ruling should not impact grandparents to a great extent because adult children usually get along fairly well with their parents and realize that it is in their children’s best interest to have a good relationship with the grandparents. Most parents appreciate the important role the grandparent’s play in their grandchildren’s lives. If you are a grandparent raising your grandchildren, the community appreciates and applauds your efforts. This article is for informational purposes and does not constitute legal advice concerning your case. Chris Meyer is an attorney practicing family law in Monument. Chris has been practicing law since 1977. He is a former prosecutor and is licensed to practice law in Colorado, Florida, California and Wisconsin. Chris can be contacted at 719-488-9395. Chris’s website (www.cmeyerlaw.com) has additional divorce and family law information. ISSUE 341
COMMON LAW MARRIAGE By Christopher C. Meyer © May 2008 Are you married, or are you just living together? In Colorado you can be married without ever participating in a marriage ceremony. Colorado is one of a minority of states that recognizes common law marriage. What is “common law marriage”? A common law marriage requires no ceremony or license. The other type of marriage is a “ceremonial marriage” and requires a license and a solemnization or ceremony. A common law marriage requires only that the couple cohabit, believe that they are married, and hold themselves out to the community as being married. The third requirement involves things like introducing yourselves to others as being married, listings as Mr. and Mrs. with the Post Office, filing taxes as married and so on. “Common Law” refers to court decisions rather than “statute law” that is created by legislative bodies. In Colorado “common law” also refers to the common law of England (including some English statutes) existing prior to the year 1688. As provided by the Colorado Constitution, this English common law is also the law in Colorado, unless it has been changed by the Colorado Legislature. Since common law marriage was recognized in England prior to 1688, it is recognized in Colorado. The Colorado Legislature could eliminate common law marriage, but has chosen not to. It is interesting to note that the total estimated population of the American colonies in 1680 was 151,507 people, a little more than the total population of Lakewood Colorado in the year 2000. Things were a lot different in 1688 than they are now. Whether a Court will decide that you have a common law marriage will depend on the specific facts of your situation. It is unlikely that any one particular fact will be determinative. A Court will base its decision on all the facts. Listing your significant other as your spouse for insurance benefits or for tax purposes can be significant. But if the couple don’t consider themselves to be married and don’t hold themselves out to the community as being married, it is unlikely that a Court will decide they have a common law marriage. However, saying you are married in order to get health insurance coverage from your significant other or in order to save money on your taxes can lead to major credibility problems with a Judge when you later try to explain that you didn’t really mean that you were married. Needless to say, this can also lead to fraud problems with insurers and the tax authorities. If you have a common law marriage, the legal ramifications are the same as a ceremonial marriage. The laws pertaining to divorce, support, child custody, property division, and bigamy are the same for common law marriages as they are for ceremonial marriages. There is no “common law divorce”. If you have a common law marriage and you want a divorce, you have to get it done the same way as the folks who have a ceremonial marriage. The law pertaining to common law marriage is the same as other law. You must remember that: you may not understand it; you may not like it; and you may not think its fair; but it’s the law! This article is for informational purposes only and does not constitute legal advice about your case. Chris Meyer is an attorney practicing family law in Monument. Chris has been practicing law since 1977. He is a former prosecutor and is licensed to practice law in Colorado, Florida, California and Wisconsin. Chris can be contacted at 719-488-9395. Chris’s website (www.cmeyerlaw.com) has additional divorce and family law information. ISSUE 342
HOW LONG WILL MY DIVORCE TAKE? By Christopher C. Meyer © May 2008 A frequently asked question during an initial consultation with a family law attorney is how long it will take to get the divorce finalized. In Colorado, from the time the divorce case is filed there is a statutory waiting period of 90 days. The earliest that the Court can grant your decree of divorce is the 91st day after filing. In certain situations, you may be able to get your divorce finalized within a few days after the 90-day waiting period has expired. In order to achieve this quick turn around, you will have to be in total agreement with the other party as to all issues involved in the case, you will have to have completed the required parenting course, and of course, all of the paperwork will have to be completed and filed. How much longer than 90 days your case may take depends on the facts and circumstances of your case. Some of the factors contributing to a longer completion date are the complexity of the case, the magnitude of the assets and liabilities, the hostility between the parties, the time each attorney has available, and the time the Court has available. Common sense tells you that a case with $20 million in assets, and property spread all over the country, is going to be more difficult to resolve and will take longer than a case where the couple has no assets or liabilities. You have a lot of control over how long your case will take. Fighting adds significantly to the length of time required to resolve your case. Sometimes fighting is unavoidable. However, if it can be avoided, your case will be over sooner. Even in cases involving significant assets and liabilities, if you can reach an agreement as to all the issues, your case should not take more than approximately six months. Unless your case is very unusual, it should not take longer than a year. Aside from the 90-day waiting period, the biggest factor that determines how long your case will take is how well you and the other party can cooperate to reach an agreement. The Courts are under strict guidelines to resolve domestic relations cases as quickly as possible. The Court will take an active role in getting your case resolved, even if you don’t want it to. Compared to other kinds of litigation, your divorce case will be over very quickly. This article is for informational purposes and does not constitute legal advice concerning your case. Chris Meyer is an attorney practicing family law in Monument. Chris’ law practice is limited to domestic relations cases. Chris has been practicing law since 1977. He is a former prosecutor and is licensed to practice law in Colorado, Florida, California and Wisconsin. Chris can be contacted at 719-488-9395. Chris’s website (www.cmeyerlaw.com) has additional divorce and family law information. ISSUE 345
SEPARATION By Christopher C. Meyer © May 2008 What does “separation” mean in the Marriage Zone? It all depends on the context. In Colorado, folks who are married and decide they no longer want to be together have three choices: separation; legal separation; and divorce. In a simple separation, the parties go their separate ways with or without a written separation agreement. They are still married. They can’t get married again until after they are divorced. They are still subject to the laws of marital property. Absent a well-crafted separation agreement, any income they receive during the separation will be considered marital property and will be split accordingly in any subsequent court action for divorce or legal separation. There are exceptions to this rule that are beyond the scope of this article. If you receive income or acquire property during a simple separation, the assumption that “what’s mine is mine and what’s yours is yours” could be disastrous. A legal separation involves a court proceeding and a court order. A legal separation involves almost the same legal principles and paperwork as a divorce. Division of property, maintenance (alimony), child support, and child custody will be addressed in the Court’s order. Six months after the Judge enters the order of legal separation, either party may file a motion requesting that the legal separation be turned into a divorce. The motion will be automatically granted. If neither party wants a divorce, the legal separation can proceed indefinitely. If you have a legal separation, you are still married. You can’t get married again until you are divorced. Some folks prefer legal separation to divorce for religious or ethical reasons. There can be other benefits to a legal separation as opposed to a divorce. For example, a spouse may be able to stay covered on the other spouse’s health insurance policy or may be able to own a life insurance policy on the other spouse. If you are legally separated, the marital property laws no longer affect you. The income you receive or property you acquire during a legal separation really is all yours. Divorce is the most popular choice when folks part ways: the couple’s financial and parenting issues are resolved; the parties are free to remarry; and the marital property laws no longer affect the parties. You need to be separated if you are getting a divorce. “Separated“ in this context means no longer living together as man and wife. Interestingly enough, you can still be living in the same house and be separated for purposes of getting a divorce, but a Judge will not grant a divorce if it is just a sham and the parties will still live together as man and wife. Separation and divorce law are like all law. You must remember that: you may not understand the law; you may not like it; and you may not think its fair; but it’s the law! This article is for informational purposes and does not constitute legal advice concerning your case. Chris Meyer is an attorney practicing family law in Monument. Chris’ law practice is limited to domestic relations cases. Chris has been practicing law since 1977. He is a former prosecutor and is licensed to practice law in Colorado, Florida, California and Wisconsin. Chris can be contacted at 719-488-9395. Chris’s website (www.cmeyerlaw.com) has additional divorce and family law information. ISSUE 347
JOINT TITLES By Christopher C. Meyer © June 2008 If you are thinking about getting married or divorced, you may have questions about the importance of title to property. These questions usually involve real estate, vehicles, and financial accounts. If you already own real estate, such as a home, and you are planning to get married, should you place the property in joint title with your new spouse? If you are going to stay married forever, it doesn’t matter much, but, keeping in mind that the divorce rate is around 50%, you might want to give serious consideration to this question. Welcome to the Marriage Zone! In Colorado, if you change the title to real property that is titled in your sole name to a joint title after you are married, you have just given half the net equity in the property (market value minus any loans secured by the property) to your spouse. The only sure-fire way to avoid this is to have a valid agreement with your spouse saying that you are excluding the property from being marital property. If you acquire property during the marriage through your efforts, such as from money earned from your job, the title to the property is not important. For example, you and your spouse (you are married) save money you earn during the marriage and buy a home. You title the home in your name only. This does not mean that you get all the equity in the home in the event of divorce. It is marital property and will be distributed to you and your spouse in a divorce. The preceding analysis applies equally to property that is not real estate. If you own a car in your sole name before marriage, but put it in a joint title after you are married, you have given half the net equity in the car to your spouse. If you buy a car during the marriage with money you earn during the marriage, but title the car in your sole name, the net equity will be distributed between you and your spouse in a divorce. The same treatment will be given to mutual funds and other financial accounts. If you change your previously separately registered accounts to joint registration after your marriage, you have given your spouse half of the account value. If you keep the accounts separately registered, the pre-marriage basis in the account will not become marital property. If you open an account during the marriage with funds that you earned during the marriage, but title the account in your sole name, the account will be distributed between you and your wife in a divorce. Good luck with your marriage, and be alert to the effects of title to property in the Marriage Zone. This article is for informational purposes and does not constitute legal advice concerning your case. Chris Meyer is an attorney practicing family law in Monument. His law practice is limited to domestic relations cases. Chris has been practicing law since 1977. He is a former prosecutor and is licensed to practice law in Colorado, Florida, California and Wisconsin. Chris can be contacted at 719-488-9395. Chris’s website (www.cmeyerlaw.com) has additional divorce and family law information. ISSUE 355
MANDATORY FINANCIAL DISCLOSURE By Christopher C. Meyer © July 2008 If you are thinking about getting a divorce or legal separation and you are concerned about whether the other party will provide you with financial information or how much information you’re going to have to provide to the other party, you must understand that Court rules require mandatory financial disclosure. As a practical matter, this means that you cannot hide or fail to disclose information regarding your financial situation. Each party has an affirmative obligation to provide the other party with a sworn financial statement that includes all the information regarding your accounts and expenses. You also have an affirmative obligation to provide supporting information such as income documentation, tax returns, credit card statements, and bank and financial account information. “Affirmative obligation” means that you are required to provide the information without the other party having to ask for it. The Court will require that you exchange the mandatory financial disclosures prior to the initial status conference, that usually is scheduled within 40 days of the petition being filed. You are under a continuing duty to supplement or amend your financial disclosures in a timely manner. If, for example, your income changes after you have provided your mandatory disclosures, you have to inform the other party of the change and provide documentation as well. It is important to note that the parties are not limited to the information covered by the mandatory disclosure requirement. The parties are free to request additional information regarding the other party’s financial situation. For example, parties commonly request bank and financial account information covering years prior to filing the petition. What happens if you fail to provide the mandatory financial disclosures? If you fail to provide the information and you have the ability to obtain it, the Court will impose appropriate sanctions. Don’t even think about trying to hide any assets. The other party will eventually discover it, your credibility will be irreparably damaged, and your case will suffer. Remember that in the marriage zone, the rules require that the parties and the Court have the best financial information available in order that the parties and the Court can make the best decisions possible based on that information. This article is for informational purposes and does not constitute legal advice concerning your case. Chris Meyer is an attorney practicing family law in Monument. Chris’ law practice is limited to domestic relations cases. Chris has been practicing law since 1977. He is a former prosecutor and is licensed to practice law in Colorado, Florida, California and Wisconsin. Chris can be contacted at 719-488-9395. Chris’s website (www.cmeyerlaw.com) has additional divorce and family law information. ISSUE 355
THE SWORN FINANCIAL STATEMENT By Christopher C. Meyer © July 2008 In a previous article I described the mandatory financial disclosure requirements in domestic relations cases. The most basic mandatory financial disclosure requirement is the obligation of both parties to exchange and file sworn financial statements. This requirement applies to all initial and post decree domestic relations cases that involve financial matters, such as child support, maintenance (alimony), and property division. The sworn financial statement is a seven-page form. You will enter your income, expense, asset, and debt information in the spaces provided. The sworn financial statement provides each party and the Court with the basic information that is needed to determine the party’s financial status. This form is an extremely useful document. It is the prime source for quick reference as to what the parties can afford on a monthly basis and their net worth. The sworn financial statement is intended to be an accurate snapshot of each party’s financial status as of the date that the party signs the document. Your signature must be notarized. The sworn financial statement requires a comprehensive listing of the parties’ monthly expenses. It shows the monthly budget for the parties. The income and expense information from the sworn financial statement will be used to determine child support and maintenance (alimony). After the form is completed, it is not unusual for parties to discover that their expenses exceed their incomes. The sworn financial statement can also be used as a tool for projecting future budgetary needs. Most people’s financial situations change significantly after they are divorced. They will have less money to live on. You can use the sworn financial statement to project what your future budget will look like. You can use the form to project your future financial needs even if you are not involved in a court case. You can download a copy of the sworn financial statement for no cost from the Colorado Courts website (www.courts.state.co.us.). You will not enjoy filling out this form. However, it is an extremely useful exercise because it makes you come to terms with your financial realities. It is also one of the best tools available for projecting your future financial status. Instead of worrying about your financial future, do something about it! Download the sworn financial statement, fill it out, and see what your future looks like. This article is for informational purposes and does not constitute legal advice concerning your case. Chris Meyer is an attorney practicing family law in Monument. Chris’s practice is limited to domestic relations cases. Chris has been practicing law since 1977. He is a former prosecutor and is licensed to practice law in Colorado, Florida, California and Wisconsin. Chris can be contacted at 719-488-9395. Please see his website (www.cmeyerlaw.com) for additional divorce and family law information. ISSUE 361
HOW LONG DOES IT TAKE TO GET A DIVORCE? By Christopher C. Meyer © September 2008 When I speak to someone interested in getting a divorce or a legal separation, one of the first questions they ask is: how long will it take? It is human nature that, after making the difficult decision to get a divorce or a legal separation, people want the desired results to occur as soon as possible. The theoretical shortest amount of time it will take to get your divorce or legal separation is 91 days from the time your case is filed with the Court. The Colorado Legislature has passed a law that requires Judges to wait 90 days after the case is filed before they can issue your divorce decree or decree of legal separation. There are no exceptions to this rule. There is no way around this rule. I don’t know the exact reason for the 90-day waiting period. However, I can speculate that the Legislature felt it was wise to provide a waiting period to prevent people from making impulsive decisions regarding such serious arrangements as marriage. How long your case will take depends upon you and your spouse. If you and your spouse cooperate and agree as to all the financial and parenting aspects of the case, your case may only take 91 days until the decree is entered. The more assets and debt you have, and the more complicated your financial arrangements are, it is likely that your case will take longer to resolve. With a big asset case, assembling all the information, getting all the expert input, and deciding how to resolve the issues are likely to take longer than 90 days, even if you wind up agreeing on everything. Wrangling about parenting issues also can add significantly to the length of your case. It is important to remember that anything you and your spouse can’t agree on, a Judge will ultimately have to decide at a hearing. Judges are very busy, and getting time for a hearing will usually place you well past the 90-day waiting period. Absent unusual circumstances, your divorce or legal separation, however complicated it may turn out to be, should not take more than a year to complete. It is important to keep tax considerations in mind regarding any divorce proceeding. If you are divorced during a calendar year, even if it is on December 31st, you cannot file as married for that calendar year. Cases filed after October 1st cannot be finalized until after the star of the next calendar year due to the waiting period. You don’t have to wait to file until next year in order to still be able to file as married for this calendar year. If you want your case completed as soon as possible after the 90-day waiting period has expired, you need to be organized and willing to cooperate with your spouse. Good luck as you contemplate leaving the Marriage Zone, and remember that there is just no getting around the 90-day waiting period. This article is for informational purposes only and does not constitute legal advice about your case. Chris Meyer is an attorney practicing family law in Monument. Chris’ law practice is limited to domestic relations cases. Chris has been practicing law since 1977. He is a former prosecutor and is licensed to practice law in Colorado, Florida, California and Wisconsin. Chris can be contacted at 719-488-9395. Chris’s website (www.cmeyerlaw.com) has additional divorce and family law information. ISSUE 430
EMANCIPATION - ITS NOT WHAT YOU THINK IT IS By Christopher C. Meyer © 2010 “Emancipation” refers to the removal of disabilities associated with childhood. Emancipation is not an all or nothing proposition. You can be emancipated for some purposes, but not for others: you can vote when you are eighteen; but you can’t drink alcohol until you are twenty-one. There is no set age of emancipation for any and all purposes. There is no specific lawsuit that you can file in Colorado to have a Court declare you emancipated. You have to file an action for declaratory judgment and request the relief you want the Court to grant. The issue of emancipation most often arises in the context of parents’ child support obligations - since this involves money! For child support purposes, once a child is emancipated, parents no longer have child support obligations to the child. Let’s look at what “emancipation” means for child support purposes. In Colorado the age of emancipation is nineteen for child support purposes, but there are some uncommon exceptions: the parties may agree otherwise in a written stipulation; if a child is mentally or physically disabled the Court may order child support to continue; if the child is still in high school, child support continues until the end of the month following graduation, but not beyond age twenty-one; or if the child is “otherwise emancipated”. A child is “otherwise emancipated” if: she has entered the military; she is married; or she is living away from home, she is self-supporting, and it is not a temporary situation. A child who becomes emancipated for child support purposes may later become un-emancipated and the child support obligation may be reinstated. For example, if the child is married but the marriage is later annulled, dissolved or declared invalid, the child support obligated may be reinstated. Similarly, a child who moves out and is self-supporting loses her job and moves back in with her parents. This child may again be eligible for child support if she is not yet nineteen. The law of emancipation is like any other law: you may not like it; you may not understand it; and you may not think it is fair, but it’s the law! This article is for informational purposes only and does not constitute legal advice about your case. Chris Meyer is an attorney practicing family law in Northern El Paso County. Chris’ law practice is limited to domestic relations cases. Chris has been practicing law since 1977. He is a former prosecutor and is licensed to practice law in Colorado, Florida, California and Wisconsin. Chris can be contacted at 719-488-9395. Chris’s website (www.cmeyerlaw.com) has additional divorce and family law information and many other articles. ISSUE 431
WHAT IS YOUR HOME WORTH By Christopher C. Meyer & Ruth Bolas © January 2010 Your home is often your biggest financial asset. What your home is actually worth can be a major issue in a divorce case. The following discussion of home valuation methods is not limited to the family law context. There are several ways of determining the value of your home. There is the “guesstimate” method, too often used by homeowners. This can result in erroneous conclusions due to faulty real estate data. Homeowners are not professional evaluators. Many of the valuation systems available to the public have incorrect data. Two other valuation methods that are often used are appraisals and comparative market analyses (CMAs). An appraisal is performed by a certified professional appraiser. A CMA is performed by a licensed real estate broker. An appraiser analyzes recent sales of other houses and makes standard adjustments for differences between the sold houses and your house in order to arrive at the value of your house. A CMA involves an analysis of active, pending, and sold listings, original list price, final sold price, days on the market, and seller concessions involved, such as payment of a portion of the buyer’s closing costs. The valuation method that is best for you may depend on practical matters such as the ultimate use of the evaluation. If a Judge is going to determine the value of your home, an appraisal may be preferable to a CMA. However, there is a trend for more acceptance of CMAs by Judges. A lender will demand an appraisal. Appraisals cost money (starting at around $350). Many real estate professionals offer CMAs for no charge. The most accurate method will depend upon the evaluator. The results provided by a well-experienced professional appraiser and a similarly experienced real estate broker should be very similar. However, a real estate broker who lives and works in your community may have a better grasp of the market value of your house than an appraiser who does not live or have experience in your community. Similarly, an appraiser who lives and works in your community may be more accurate regarding your home than a real estate broker who lives and works in Fort Collins. Good luck with your home valuation and remember that both an appraisal and a CMA are vastly superior to a guesstimate. Keep in mind that what your home is worth to you is not necessarily its market value. The market value, whether determined by an appraiser or a realtor, is simply the price your home is likely to sell for in the current market. You should also keep in mind that savvy buyers working with a realtor will almost always get a CMA before they make an offer! This article is for informational purposes only and does not constitute legal advice about your case. Ruth Bolas is a licensed Real Estate Broker with Keller Williams and is also an attorney. She grew up in the Monument area and serves the Front Range specializing in working with buyers as well as home sales and short sales. Ruth Bolas can be reached at ruthbolas@msn.com or 719-488-3026 or 303-437-6010. Chris Meyer is an attorney practicing family law in Northern El Paso County. Chris’ law practice is limited to domestic relations cases. Chris has been practicing law since 1977. He is a former prosecutor and is licensed to practice law in Colorado, Florida, California and Wisconsin. Chris can be contacted at 719-488-9395. Chris’s website (www.cmeyerlaw.com) has additional divorce and family law information and many other articles. ISSUE 437
MILITARY RETIREMENT By Christopher C. Meyer © 2010 A lot of military and former military folks live in our area. It is not surprising that I am often asked “If I get divorced, will I get part of my spouse’s military retirement?” Fortunately for the person posing the question, the answer is yes, you will receive part of your spouse’s military retirement if you were married to your spouse during at least part of the time your spouse was serving in the military. Military retirement benefits, like civilian retirement benefits, are marital property to the extent they are earned during the marriage. Marital property will be divided between the parties by the Court in a divorce. Military retirement, or “disposable retired pay”, is divided using a formula: months of marriage during military service are divided by the total months of military service; disposable retired pay is then multiplied by this fraction to arrive at the total marital portion of the disposable retired pay. Fifty percent of the total marital portion is then typically allocated to the non-military spouse. For example: military spouse has 252 months (21 years) of military service; the parties were married for 216 months (18 years) during that military service. In this example the disposable retired pay is $2000 per month. Therefore, the marital portion of the retirement is $1714.28 per month (216 ¸ 252 ´ $2000). The non-military spouse’s share will be $857.14 per month ($1714.28 ¸ 2), and the military spouse’s share will be $1142.86 ($2000 – $857.14). Sorry about all the math, but it may be useful to you if you need to crunch some numbers. If a divorce happens prior to retirement, some provision should be made to protect the non-military spouse in the event the military spouse should die. Payment of military retirement ceases upon the death of the retiree. A survivor benefit plan (SBP) is available through the military, or life insurance can be purchased to cover the amount of the anticipated retirement funds. Either method will insure that the non-military spouse continues to receive their share of the retirement after the retiree dies. Keep in mind that flexible and creative solutions can be substituted for the actual division of the military retirement in certain instances when the parties agree. For example, a lump sum payment calculated on the present value of the military retirement can be substituted for an actual division of the retirement. You may have heard of the “ten year rule”. Many mistake this rule to mean that the parties have to have been married for ten years during the military service to be eligible to receive a portion of the retirement in a divorce. This rule only means that the parties must have been married for ten years during the military service in order for the non-military spouse to paid their portion of the retirement directly from the military (DFAS). If the parties are married for less than ten years during the military service, the military spouse pays the non-military spouse directly, rather than the payment coming from DFAS. Make sure you cover all your bases when you exit from the marriage zone, and don’t forget to arrange to receive your fair share of your spouse’s military retirement. This article is for informational purposes only and does not constitute legal advice about your case. Chris Meyer is an attorney practicing family law in Northern El Paso County. Chris’ law practice is limited to domestic relations cases. Chris has been practicing law since 1977. He is a former prosecutor and is licensed to practice law in Colorado, Florida, California and Wisconsin. Chris can be contacted at 719-488-9395. Chris’s website (www.cmeyerlaw.com) has additional divorce and family law information and many other articles. ISSUE 440
REVIEWING YOUR WILL By Christopher C. Meyer © 2010 This article is not about your personal determination. It is about your last will and testament. When should you review your will? Generally speaking, you should review your will: whenever you have a major change in your personal situation; whenever you have a major change in your financial situation; or, annually, to determine if there are any changes in the law that should be reflected in your will. A divorce usually generates reasons to review your will because big personal and financial changes result. If you already have a will, what happens to it if you get divorced? Married folks typically list their spouse as a beneficiary. Divorced folks rarely do this. After you are divorced, you usually don’t want much to do with a former spouse, much less gift them the property you have left after the divorce. Talk about adding insult to injury! Fortunately for a lot of folks, the law assumes that you will forget to change your will after you are divorced and remove your now former spouse as a beneficiary. Absent an agreement between the parties or a Court order, a divorce invalidates testamentary (will) gifts to former spouses. The same is true for powers of attorney, insurance beneficiary designations, and pay on death designations for various accounts. The same is also true for folks who never had a will. If your estate passes via intestate succession, it is not going to a former spouse. Situations may arise where there are good reasons to maintain a former spouse as a beneficiary in a will. An example might be to insure continued maintenance payments after a long-term marriage. The best practice in such instances is to make a new will after the divorce. After you have exited from the marriage zone, you should make a new will. If you don’t, and your former spouse is your only beneficiary, when you pass away your property will be distributed according to the plan the legislature has determined for such situations (intestate succession) and involves your property being distributed to your closest blood relations. This article is for informational purposes only and does not constitute legal advice about your case. Chris Meyer is an attorney practicing family law in Northern El Paso County. Chris’ law practice is limited to domestic relations cases. Chris has been practicing law since 1977. He is a former prosecutor and is licensed to practice law in Colorado, Florida, California and Wisconsin. Chris can be contacted at 719-488-9395. Chris’s website (www.cmeyerlaw.com) has additional divorce and family law information and many other articles. ISSUE 447
DIVORCE FOR AS LITTLE AS $230 By Christopher C. Meyer © 2010 I’ll bet the title got your attention. This article is about Court fees in divorce cases. It is possible to get divorced in Colorado for as little as $230. This is the filing fee for a divorce where minor children are not involved. If you are indigent, the Court may waive some, or all, of the fees. The subject of indigence for Court fees will be the subject of a future article. The filing fee for a petition of dissolution of marriage (divorce) or legal separation is $230. If your spouse signs the petition as a co-petitioner, that is all you will have to pay, if no minor children are involved, and you and your spouse are agreed as to all matters. If minor children are involved, the filing fee is $280. This fee includes the fee for the mandatory class for divorcing parents. There are additional fees that are usually involved. If your spouse won’t sign the petition as a co-petitioner, you may need a process server to serve the petition and summons on him (or her). Private process servers charge around $50. The Sheriff’s Office charges $51.20 to serve someone with divorce papers in the Monument zip code area. Once you are served with the petition and summons, you must file a response to the petition. The fee for filing a response is $116. You can get all the forms you need for free from the Colorado Courts website, or you can buy a package of the forms from the clerk’s office for $25. If you can’t reach an agreement with your spouse as to all matters, the Court will require you to attend a mediation before it will let you have a final orders hearing. The Court’s Office Of Dispute Resolution charges $120 per party for a two-hour mediation. Once the case is completed and the decree has been granted, you may need certified copies of various documents in order to comply with the requirements of financial institutions, etc., to prove that you are divorced and the terms of the divorce. The charge for certified copies is 75 cents per page, and $20 for certification of the document. There is also a $5 search fee. If you order all your documents at one time, you may only be charged one certification fee. The fees for certified documents in a divorce case involving minor children can easily run over $40. If both parties need certified copies, and they usually do, it will be double that. Your Court fees in a divorce case can be as little as $230. In a case involving minor children where the parties can’t reach a total agreement, the total fees for both parties will typically be closer to $600. This assumes that you are doing everything yourself! If you retain an attorney to represent you, the attorney will pay the court-associated fees from the attorney’s retainer fee. This is one reason why attorney retainer fees are as big as they are. Good luck to you if you are contemplating an exit from the marriage zone, and remember that there are significant Court fees involved if you decide to go through with it. This article is for informational purposes only and does not constitute legal advice about your case. Chris Meyer is an attorney practicing family law in Northern El Paso County. Chris’ law practice is limited to domestic relations cases. Chris has been practicing law since 1977. He is a former prosecutor and is licensed to practice law in Colorado, Florida, California and Wisconsin. Chris can be contacted at 719-488-9395. Chris’s website (www.cmeyerlaw.com) has additional divorce and family law information and many other articles. ISSUE 477
SHOULD YOU HIRE A LAWYER? By Christopher C. Meyer © 2010 Should you hire a lawyer for your divorce? Many people don’t use lawyers for their divorce. You may not be able to afford a lawyer. If you have only been married for a few years, and you have no children, and you have little in the way of assets and liabilities, you may decide you can do it yourself. If you have been married for more than a few years, and you have significant assets and liabilities, and if children are involved, the more likely it is that you may need a lawyer. A simple analogy may be helpful in making this decision. Let’s assume you have been in a business partnership with another person for 10 years. Your partner has become dissatisfied with your performance in the business. Your partner decides to get rid of you and carry on the business without you. Business has been fairly good during the partnership and the business has accumulated significant assets as well as some liabilities. When you entered into the partnership there was no agreement about what would happen when the partnership ended. Do you think it makes good business sense to talk to a lawyer about ending the partnership? Are you confident that your partner will treat you with absolute fairness and provide you with all the information you need to make the best possible decisions? Do you accept your partner’s first offer to buy you out of the business? Can you get your fair share of the business and eliminate any unnecessary liabilities without a lawyer’s help? These issues are similar to the issues you will encounter in a divorce; but a divorce is even more complicated because you are emotionally involved with the your spouse. This makes it very difficult to be objective and to accurately analyze your options. If you have been married for a significant length of time, your divorce will be one of the biggest, if not the biggest, business transactions that you will ever be involved in. Do you understand the business of getting a divorce? Do you understand divorce laws regarding the division of assets and liabilities, including complex assets such as pensions and retirement accounts? If not, you may shortchange yourself. Do you understand laws regarding spousal support (maintenance)? If not, you may get much less than you are entitled to. Do you understand laws regarding child custody and child support? If not, you may adversely impact your children’s best interests. Do you understand the tax ramifications of divorce? Divorces, just like business transactions, have tax consequences. Do complex transactions involving big financial decisions and family responsibilities make you anxious? If you hire a lawyer, she or he should be able to shoulder most of the load and increase your confidence level that you are doing the right thing for you and your children. A divorce proceeding is paperwork intensive. Do you enjoy doing paperwork? For example, do you prepare your own income taxes? Do you enjoy court proceedings? A family law attorney handles divorces on a regular basis, can take care of the paperwork for you, and is very familiar with the associated court matters. Does your spouse already have a lawyer? That lawyer’s job is to represent your spouse, not you, to the best of the lawyer’s ability. Depending on your situation, you may want to consider hiring a lawyer to help you with your divorce. If you already have a relationship with a lawyer, talk to her or him about it. There are many good family law attorneys to choose from. This article is for informational purposes only and does not constitute legal advice about your case. Chris Meyer is an attorney practicing family law in Northern El Paso County. Chris’ law practice is limited to domestic relations cases. Chris has been practicing law since 1977. He is a former prosecutor and is licensed to practice law in Colorado, Florida, California and Wisconsin. Chris can be contacted at 719-488-9395. Chris’s website (www.cmeyerlaw.com) has additional divorce and family law information and many other articles. ISSUE 479
SEPARATE PROPERTY By Christopher C. Meyer © 2010 In a Colorado divorce, marital property will be equitably divided between the spouses. The spouses’ separate property, if any, will be set aside to each spouse. What is “separate property”? Separate property is property that was acquired prior to the marriage or property that was acquired during the marriage such as an inheritance and certain other gifts. For example, if you saved money prior to the marriage or a parent left you money in their will during the marriage, such funds are your separate property, assuming that you have not commingled such funds with marital property. The Court has no power to divide or distribute separate property. However, the Court does not operate in a vacuum and can take separate property into consideration when making financial decisions regarding the division and distribution of marital property and the amount and duration of maintenance (alimony). You may now be thinking that you can rest easy and not worry about your separate property. However, any increase, such as appreciation, of your separate property during the marriage is marital property and will be divided by the Court! Folks who have been married for a long time and who have separate property investments are probably going to have a lot of marital property resulting from the increase in the value of their separate property investments during the marriage. For example, the little vacation home in Aspen you purchased thirty years ago before your marriage is going to have a huge marital property component due to the amount it has appreciated during the marriage. Similarly, if you are fortunate enough to be the beneficiary (remainderman) of a trust that is no longer revocable (for example, the person who created the trust has died), you may discover that your separate property interest in the trust may have a significant component of marital property even though you have never received a dime from the trust! The analysis of property interests in trusts is too complicated for an article like this and may require the services of an expert accountant to figure out. Separate property issues in divorce can be very simple or extremely complex depending on the facts of any given case. If you are contemplating getting a divorce, you need to understand the differences between separate and marital property, and don’t forget that separate property can create marital property. You should remember that divorce property law is like any other law: you may not understand it; you may not like it; and you may not think its fair; but it’s the law! This article is for informational purposes only and does not constitute legal advice about your case. Chris Meyer is an attorney practicing family law in Northern El Paso County. Chris’ law practice is limited to domestic relations cases. Chris has been practicing law since 1977. He is a former prosecutor and is licensed to practice law in Colorado, Florida, California and Wisconsin. Chris can be contacted at 719-488-9395. Chris’s website (www.cmeyerlaw.com) has additional divorce and family law information and many other articles. ISSUE 481
SHORT SALE OF THE MARITAL HOME By Christopher C. Meyer and Ruth Bolas © November 2009 What happens when you are getting divorced and your house is worth less than the loans associated with it? Is a short sale a potential solution? A significant number of people who purchased or refinanced homes in the last few years are upside down in their homes. They owe more on the house than it is worth. In a divorce, the assets and debts are going to be divided between the parties. If the house sells for a net loss, that debt is going to be divided between the parties. Is there some way to avoid or minimize this debt without foreclosure or bankruptcy? A short sale may be the perfect solution. Although it is not ‘short’ in duration, the short sale process involves a lender taking less or ‘short’ of what they are owed. In most circumstances there are two loans – a first and a second. To facilitate a short sale, the realtor would work with the lenders to negotiate acceptance of a lesser amount than what is owed. For example: 1st Mortgage $200,000 2nd Mortgage $50,000 Market Value $210,000 If the home could be sold for $210,000, then the first lender in this example could be paid in full and the second would have to accept a loss. Keep in mind this example does not include the costs associated with the transaction including commissions, title work, tax pro-rations, and closing fees (that are all paid by the lenders, not the home owners). If the property were foreclosed on, the second lender would get nothing, so better to accept a loss and recover some money in a short sale versus nothing in a foreclosure. Even where a mortgage holder in first position needs to accept less than what they are owed they typically will because in most foreclosures they will end up taking the property back for later sale as a bank-owned property. Banks make money by making loans – not by owning real estate. Residual risk in a foreclosure or short sale is that the lender(s) could pursue a judgment for the ‘deficiency’ or amount still owed after the short sale or foreclosure, but this is not the general practice. In short sales, lenders used to issue a 1099 to the home owners for the deficiency, but now, with new legislation, in most situations the deficiency is not considered taxable income to the sellers/homeowners. The lender’s motivation to accept a short sale is to get money quickly from the sale and avoid the expense of a foreclosure sale. The homeowners’ motivation is to avoid the adverse effect of a foreclosure on their credit ratings. When homeowners can demonstrate a legitimate hardship such as divorce, financial problems, loss of job, or health problems, lenders are very likely to work with them to facilitate a short sale. If you struggling financially and you are upside down in your house, you may be able to avoid foreclosure with a short sale. A short sale is a complicated transaction and it can take a long time, but the credit damage is significantly less than that resulting from a foreclosure. A short sale can be an effective damage control device for homeowners, but it requires patience and expertise. Keep this in mind if you are trying to minimize your losses as you exit from the marriage zone. This article is for informational purposes only and does not constitute legal advice about your case. Ruth Bolas is a licensed Real Estate Broker with Keller Williams and is also an attorney. She grew up in the Monument area and serves the Front Range specializing in working with buyers as well as home sales and short sales. Ruth Bolas can be reached at ruthbolas@msn.com or 719-488-3026 or 303-437-6010. Chris Meyer is an attorney practicing family law in Northern El Paso County. Chris’ law practice is limited to domestic relations cases. Chris has been practicing law since 1977. He is a former prosecutor and is licensed to practice law in Colorado, Florida, California and Wisconsin. Chris can be contacted at 719-488-9395. Chris’s website (www.cmeyerlaw.com) has additional divorce and family law information and many other articles. ISSUE 486 MODIFICATION OF MAINTENANCE AWARDS By Christopher C. Meyer © March 2008 After a few years have passed from the time of an original maintenance (alimony) award, questions often come up about whether the maintenance award can be modified. Modifying a maintenance award is not a simple matter. An important thing to keep in mind is that judgments, including divorce decrees and maintenance awards, are intended to be final and to provide a firm basis for the parties to be able to plan and predict their future activities. Courts don’t modify judgments unless there is an extremely good reason to do so. Colorado statutes provide that a maintenance award can be modified if there are changed circumstances so substantial and continuing as to make the original terms of the award unfair. Please note that there are four basic requirements: changed circumstances; substantial change in circumstances; continuing change in circumstances; and the change must make the original terms unfair. A brief examination of each requirement can be helpful. The requirement of a change from the circumstances existing at the time of the original award is often overlooked. The critical question is what is different now than it was at the time of the original award? If the only change is the passage of time, this not a change in circumstances that will provide a basis for modification. For example, an original award for maintenance is for three years. Three years have now passed and the ex-spouse receiving the maintenance can no longer afford to live in her house without continuing to receive the maintenance. There is no change in circumstances in this scenario and the maintenance award will not be modified. Is there a substantial change in circumstances? Courts don’t care about minor changes in circumstances. What constitutes a “substantial change” cannot be precisely defined. However, the bigger the change in circumstances, the more likely the court will grant a modification. Is there a continuing change in circumstances? If the change in circumstances is temporary, it won’t qualify. For example, if you work for commissions and business has been slow, the court may assume that your commissions will return to their average level and not grant you any relief. Does the change in circumstances make the original terms of the maintenance award unfair? You can have a significant change in numbers that does not make the original terms of the maintenance award unfair. However, for example, if you become physically disabled and can now only work at a job that pays you half as much as you were getting at the time of the award, a court might think that this change in circumstances rendered the terms of the original award unfair. Good luck with your maintenance modification, but give it some hard thought before you file, or you could be wasting your time. Also keep in mind that filing for a maintenance modification can be like poking a hornets’ nest with a stick. You may get a lot more excitement then you anticipated. This article is for informational purposes only and does not constitute legal advice about your case. Chris Meyer is an attorney practicing family law in Northern El Paso County. Chris’ law practice is limited to domestic relations cases. Chris has been practicing law since 1977. He is a former prosecutor and is licensed to practice law in Colorado, Florida, California and Wisconsin. Chris can be contacted at 719-488-9395. Chris’s website (www.cmeyerlaw.com) has additional divorce and family law information and many other articles. |
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