Family Law, Divorce, Custody and Child Support Attorneys in Denver, Colorado

Spousal Maintenance: Statutory or Contractual?

Individuals facing the dissolution of marriage process often seek to have spousal maintenance awarded to him or her. There are many reasons for wanting to be awarded spousal maintenance, but perhaps the most common reason deals with a disparity in income between the parties. For instance, it is not uncommon for the parties to agree that during the marriage, one party will forego a career, or work part-time, in order to raise the parties’ children and the other party will be the primary “breadwinner.” It is perfectly acceptable for the parties to have defined each other’s role in the marriage. However, it is also understandable that the parties’ may not have considered the long-term ramifications of this type of decision. One of those ramifications may concern how each party will support himself or herself after the divorce is finalized.

As such, the party who cared for and maintained the home and raised the children may have surrendered his or her career to do so. Further, if this was your agreement during the marriage, and suppose you were married for 15 years, you suddenly have to devise a plan to make ends meet on your own. In this instance, you will very likely be seeking spousal maintenance and will have two options: statutory and contractual.

Statutory maintenance is the type which is awarded by the Court. The Court may award maintenance for such amounts and for such periods of time that the Court deems just. The Court will consider several factors, set forth in C.R.S. § 14-10-114, including the financial resources of the party seeking maintenance, which may include marital property apportioned to him or her; the time necessary to acquire education or training sufficient to enable to party who requests maintenance to find suitable employment, as well as his or her future earning capacity; the standard of living established during the marriage; the duration of the marriage; the age and physical and emotional condition of the spouse seeking maintenance; and the ability of the other spouse to meet his or her needs while paying maintenance to the requesting spouse.

Contractual maintenance is the type which results in the parties reaching an agreement about how much maintenance will be paid, and for what duration of time, to the requesting spouse. This may be beneficial to the parties, as it takes the matter away from the Court to decide and eliminates the uncertainty as to what the Court may or may not award. It may also be beneficial because the parties may agree that the contractual maintenance is never modifiable by a Court. Ever. Whether maintenance is awarded  by the Court pursuant to statute, or contracted for between the parties without clear language designating the maintenance as non-modifiable, the general rule is that maintenance is modifiable upon a showing of changed circumstances so substantial and continuing as to make the terms unfair.

Spousal Maintenance: Statutory or Contractual?

When a party files a dissolution of marriage action, often times they will reach an agreement concerning the allocation of the parties’ property, including their assets and debts. This is known as a Separation Agreement and it may also contain a provision concerning spousal maintenance. This is referred to as “contractual” spousal maintenance.

Imagine that the Court issues a Decree for Dissolution of Marriage. Subsequently, imagine that the parties decide to reconcile their relationship and might even move in together. So what happens to those provisions set forth in your Separation Agreement? Largely, this will based upon the time frame specified in the Separation Agreement that provides for when certain events must happen. For example, the agreement may provide that “within thirty days of the date of the Court’s issuance of a Decree for Dissolution of Marriage, the Petitioner shall sign over the car title to Respondent.” In this situation, whether that provision of the separation agreement is still in effect will likely depend upon whether this provision has been satisfied prior to the reconciliation. However, if your separation agreement addresses on-going obligations, such as the monthly payment of spousal maintenance, whether that provision is still in effect is not as cut and dry.

The Colorado Court of Appeals has consistently held that reconciliation does not automatically terminate a property settlement; however, in determining whether a reconciliation has terminated a property settlement agreement, the trier of fact must ascertain from the evidence whether the parties intended to revoke the agreement upon reconciliation. Morrell v. Morrell, 687 P.2d 1319, 1322 (Colo. App. 1984). Moreover, the burden of attempting to prove that the reconciliation did not terminate the agreement lies with the party arguing for this proposition.

The portions of the separation agreement that have not yet been fully executed are those which may be terminated upon the parties’ reconciliation. This is important to keep in mind if you are intending to reconcile with your former husband or wife. Should the reconciliation head south, the likelihood that the party who was supposed to receive maintenance or other property pursuant to separation agreement may very well try to obtain those payments or his or her share of property.

Therefore, it is important to make your intentions known, just to be on the safe side. If you and your former spouse intend to reconcile, and you are still on the hook for making payments or transferring property pursuant to the separation agreement, it may be wise to put those intentions in writing. For good measure, and depending on the circumstances, you may want to file your intentions with the Court.

The Effect of Reconciliation on Separation Agreements

If you have filed for divorce and are now wondering what the next step is, the following addresses what you can expect to happen in the early stages of the divorce process.

The commencement of a dissolution of marriage case occurs when one party, referred to as the Petitioner, files a Petition for Dissolution of Marriage, Summons, and Case Information Sheet.   The filing of these initial pleadings grants the Court jurisdiction over the Petitioner in the case.  However, the Court does not have jurisdiction over the person whom the Petitioner is divorcing, referred to as the Respondent, until personal service upon him or her occurs.  The preferred entities to use in order to accomplish service include a private process server or a deputy from your local sheriff’s department.

Regardless of whether the Petitioner has accomplished personal service over the other spouse, the Court will issue a Case Management Order shortly after the initial pleadings are filed.  The Case Management Order is very important and should be read closely by both the Petitioner and Respondent, collectively referred to as the “parties.” Among the many provisions set forth in the Case Management Order, some of the most important include the date and time for your Initial Status Conference and timeline for exchanging mandatory financial disclosures.  If the Petitioner and Respondent have children together, then the parties should pay close attention to the portion of the Case Management Order that provides instructions for completing a parenting class.

So what happens at the Initial Status Conference?  The Initial Status Conference is a Court date, and both parties are required to appear.  Every jurisdiction conducts its status conferences pursuant to its own procedures.  In some counties, magistrates conduct the conferences; in others, the family court facilitator will conduct the conferences.  The clerks who work for the Judicial Officers may also conduct the status conferences.  Whether you appear before a magistrate, court facilitator, or clerk may depend upon whether either party is represented by an attorney.

Despite where you filed for divorce and whom you appear before for your conference, the same common issues are frequently addressed at all conferences.  Mainly, the Court wants to know what the “status” is of the case.   The questions you are likely to be asked concern whether the parties have exchanged the mandatory financial disclosures; whether the parties have completed their parenting class, if children are involved; and whether the parties believe they will be able to resolve their issues amicably or whether any issues will be contested.  The Court may ask whether the parties intend to attend mediation to resolve any contested issues. 

Overall, while the Initial Status Conference is an actual court date, the purpose of the conference is, quite simply, to determine the status of the case.    The best way to prepare for an Initial Status Conference is to complete your financial disclosures and parenting class prior to appearing for you conference.  It is important to think about the issues that you and the other party are facing, such as allocating parenting time, dividing assets and debts, spousal maintenance, and child support.   While having to appear in Court may seem intimidating, being prepared will certainly assist you and help the process go smoothly.

The Initial Status Conference and Early Stages of the Divorce Process

Upon a military service member’s return home from a long deployment necessitated by war, he or she is undoubtedly eager to reunite with family and friends. Unfortunately, if a service member happens to be the parent of a minor child, he or she may arrive home and be confronted with yet another battle.
Should a military parent be divorced, separated, or no longer involved with the other parent of his or her child, it is very likely that plan was established to allocate parenting time and responsibilities. Whether this plan was made by agreement between the parties or by Court Order, the plan may or may not have addressed whom the minor child would reside with during the military parent’s deployment. Even if the plan addressed what happens in the instance of the military parent’s deployment, what happens when that parent arrives back home and wants to resume his or her former parenting schedule?
A recent CBS news report addressed this very situation. The CBS news report concerned a military service member who is also the mother of a minor child. Upon her deployment and pursuant to her family care plan, she temporarily transferred her status as the child’s primary residential parent to the child’s father. The problems began when she arrived back home and was informed by the child’s father that she needed to obtain legal counsel. According to CBS, the father refused to return the parties’ minor child to the mother and resort back to the parties’ parenting arrangement in place prior to her deployment.
Congressman Mike Turner from Ohio has introduced legislation that attempts to resolve this issue. This legislation would set federal standards and guidelines for domestic relations judges to follow concerning a service member’s parental rights. However, the Department of Defense argues against the bill, and believes that because this issue has historically been left to the states to decide, the states are better suited to handle it. As the Department of Defense has successfully stifled the bill since 2007, the future of these provisions is unknown. However, as this issue appears to be gaining national attention, we will continue to follow the bill’s progress.
To read more, go to: http://cbs4denver.com/national/military.parents.custody.2.1366749.html

Congress’ Attempt to Solidify the Rights of Military Parents

“Marital fault” (also referred to as “marital misconduct”) is a phrase frequently used when one spouse places the blame for a marriage not succeeding on the actions of the other spouse. Colorado courts are not permitted to consider marital fault upon distribution of assets or debts during a dissolution of marriage action. C.R.S. §1 4-10-113. However, Colorado courts have held that should a party to a dissolution of marriage proceeding deplete an economic resource of the marriage, they court may consider such “economic fault” during its division of assets.

Generally, only the marital property existing at the time of the dissolution of marriage is available for distribution between the spouses. The only exception is that a court can value marital property that has been dissipated as of the date it still existed.

The concept of depleting the economic resources of a marriage may seem straightforward. However, pursuant to the temporary injunction that goes into place once a petition for dissolution of marriage is filed with the court, and subsequently served on the other party, both spouses are permitted to utilize the assets of a marital estate for “reasonable and necessary” living expenses.  As the Court may consider the economic fault of a party based on actions committed prior to and after the commencement of the divorce, the line between reasonable spending, and depletion to the extent of economic fault, may blur easily.

The concept of economic fault is more widely applied to situations that occur prior to the commencement of a dissolution of marriage action. For instance, in In re Marriage of Hunt, the Court of Appeals stated that “’economic fault’ is a limited concept which comes into play only in extreme cases such as the spouse’s dissipation of marital assets in the contemplation of divorce.” 909 P.2d 525, 542 (Colo. 1995).

The divorce process is often emotional and stressful. The period of time leading up to the commencement of a divorce action is sometimes even more trying. Individuals who are typically cool-headed may make rash decisions during these times. Actions by one spouse that are deliberate and committed under circumstances where the other spouse is not consulted or given the potential to mitigate potential damages, can be considered as economic fault by the Court. One situation where the Court differentiated between marital fault and economic fault occurred where a husband stopped making lease payments on a business lease owned by husband and wife. In re Marriage of Jorgenson, 143 P.3d 1169 (Colo. App. 2006). The actions by husband were considered economic fault.

In conclusion, it is important to keep the concept of economic fault in mind, especially when making decisions concerning the assets of your marriage, if you anticipate a divorce in your future.  Actions taken that may be construed as depleting an economic resource of the marriage may be used against you and, therefore, may impact the amount of property you receive upon the distribution of assets.

Marital Fault or Economic Fault? What Colorado Courts May and May Not Consider

Upon a military service member’s return home from a long deployment necessitated by war, he or she is undoubtedly eager to reunite with family and friends. Unfortunately, if a service member happens to be the parent of a minor child, he or she may arrive home and be confronted with yet another battle.

Should a military parent be divorced, separated, or no longer involved with the other parent of his or her child, it is very likely that plan was established to allocate parenting time and responsibilities. Whether this plan was made by agreement between the parties or by Court Order, the plan may or may not have addressed whom the minor child would reside with during the military parent’s deployment. Even if the plan addressed what happens in the instance of the military parent’s deployment, what happens when that parent arrives back home and wants to resume his or her former parenting schedule?

A recent CBS news report addressed this very situation. The CBS news report concerned a military service member who is also the mother of a minor child. Upon her deployment and pursuant to her family care plan, she temporarily transferred her status as the child’s primary residential parent to the child’s father. The problems began when she arrived back home and was informed by the child’s father that she needed to obtain legal counsel. According to CBS, the father refused to return the parties’ minor child to the mother and resort back to the parties’ parenting arrangement in place prior to her deployment.

Congressman Mike Turner from Ohio has introduced legislation that attempts to resolve this issue. This legislation would set federal standards and guidelines for domestic relations courts to follow concerning a service member’s parental rights. However, the Department of Defense argues against the bill, and believes that because this issue has historically been left to the states to decide, the states are better suited to handle it. As the Department of Defense has successfully stifled the bill since 2007, the future of these provisions is unknown. However, as this issue appears to be gaining national attention, we will continue to follow the bill’s progress.

To read more, go to: http://cbs4denver.com/national/military.parents.custody.2.1366749.html

Congress’ Attempt to Solidify the Rights of Military Parents

In the event that you become responsible to pay child support and/or spousal maintenance, it is essential that you keep a detailed record of each payment made. If you are Ordered to pay child support, it is likely to be for a period of several years. The duration for which you may be Ordered to pay spousal maintenance varies depending on the parties’ situation.

Often times, the Court will Order your payments to be made to the Family Support Registry (FSR). The FSR then distributes the payment to the obligor. The FSR keeps track of the date your payment was made and the amount of the payment. However, it is not always clear as to whether your payment was for child support or spousal maintenance. Missing just a few payments can cause you severe frustration several years down the line.

For instance, assume you and your spouse or significant other have a child together. Further, assume that soon after your child is born, your relationship becomes tumultuous, and the two of you decide to separate. Depending on several factors used to calculate child support, it likely that one party will be required to pay the other a child support payment each month. Depending on the amount to be paid, you may even pay twice per month. As child support payments are likely to be required until that child becomes emancipated, you may be paying once or twice monthly for the next nineteen years. To put this into perspective, if you are required to pay child support for 19 years, one payment each month, that is 228 payments that will be made and 456 payments should you be Ordered to pay twice per month!

The sheer number of payments is one reason why it is imperative that both the Obligor and Obligee keep a record of each payment made, including, but not limited to: the date the payment was made; a copy of the form of payment, such as a check, wire transfer, or money order; the address the payment was sent to if mailed; the date the payment was cashed, if traceable; and whether that specific payment was for child support or spousal maintenance. Keeping track of what the payment was for is essential, due to the high interest rate imposed for missed child support and spousal maintenance payments. While both are high, child support is much higher, currently 12%, and is compounded monthly. C.R.S. § 14-14-106 (2008). Interest applied to unpaid spousal maintenance is 8%, compounded annually. C.R.S. § 5-12-101 (2008).

Not only is it important to meet your obligations if you are the Obligor, but just imagine the conundrum you may face should the Obligee seek to recover any alleged missed payments if you do not have sufficient records to prove the payments were made. Under Colorado law, if any Court Ordered installment of child support or maintenance is due and unpaid, it automatically becomes a final money judgment. C.R.S. § 14-10-122(1)(c) 2008. Consequently, the applicable statute of limitations is twenty years from the entry of such a judgment. C.R.S. § 13-52-102(2)(a) (2008). Should you fail to make payments, you may be faced with an action whereby you need to produce payment records from the last two decades.

Due to the various durations of time which the child support and/or spousal payments may be required, if you have not maintained a record of your payments, it may be difficult to defend yourself. Never rely on your bank or financial institution to safeguard these records for you, as the method of payment used ten years ago may now be obsolete due to constantly changing technology.
Regardless of whether you are responsible to pay child support, maintenance, or both, missing just a few payments may cost you more than you bargained for, including the time required to trace your payment history. The needless expense associated with re-creating your payment history is entirely avoidable, so be sure you maintain an accurate, detailed record of each payment made.