At the end of April, I posted an article regarding the timing of filing
your Colorado divorce case. Though I had strived to start answering questions
sooner, May slipped away from me, with my children’s school ending,
vacations, and the busy pace that comes with being a Denver divorce attorney.
As we move into June, I am now refreshed, focused, and back in the literary
saddle, ready to continue informing my readers as to all aspects of Colorado
custody, divorce, and child support law. Below are what I will call “Round
1″ of the answers and explanations related to the questions posed
in my last posting.
As each divorce and custody lawyer in Denver has his or her own opinion,
my answers and explanations are subjective in nature. Furthermore, there
is no “right” or “wrong” answer and there are
many differing factual variables which, in a real life divorce setting,
could change the answer or explanation set forth below.
My husband is the primary bread winner and just lost his job. WAIT.
I answered this question with “wait” based on concerns regarding
income and the assessment of alimony (maintenance) and child support.
Contested Denver area divorce cases can take anywhere between 4 months
and 2 years, depending on which county your case is in. That certainly
would give the husband in this scenario plenty of time to find a job.
C.R.S. 14-10-115, and case law interpreting such, indicates that you look
to a person’s employment or income potential. At the same time,
the court is not going to automatically use the husband’s prior
income for purposes of assessing child support or alimony. The wife needs
to wait a while to see what shakes out with the job search. At a “temporary
orders” hearing, the court is going to look at the current financial
status quo when assessing financial orders to govern while the case is
pending. Likewise, if husband is still unemployed at the final or “permanent
orders” hearing, this will likley affect the outcome on the issue
of alimony, including potentially a claim for such against wife if she
works and huband does not. A little patience is needed in this scenario,
as no job for your soon to be ex spouse can either leave you receiving
less, or even potentially paying more.
I am the primary bread winner and got laid off a couple of months ago.
My husband works. FILE
In essence, the answer of “file” to this question is almost
the reverse of the answer to Question #1 above. If you have been the primary
breadwinner and the one who will likely be bearing the financial burden
of supporting the other party, it is better for you to file your Denver
divorce while you are in a lesser financial position, thereby making it
less likely for the court to ding you financially in a battle over alimony,
child support, or attorney fees. You must keep in mind that the court
will still, of course, be looking at what efforts you make, or have made,
to find similar employment. Thus, the job loss is not a free pass, but
could mitigate your damages in the sense of what you might ultimately
be paying your spouse.
My husband has hit me and threatened to kick me out of the house. FILE (now)
Reflecting on this question I wrote back in April, I am left pondering
what I was really trying to say or convey? The question is somewhat silly
as written. I believe I intended to insert the word “pre-marital”
into the equation. Presuming such, my answer will stay the same. Though
a husband or wife cannot just “kick” the other out of the
house, it can be argued that a home owned by one spouse prior to a marriage
is his or her separate property. As such, one could argue that that spouse
could legally try to evict the other or, in an even more cruel fashion,
call the police to argue trespassing or something along those lines. Though
the court can ultimately order the second spouse out of the house, it
would likely be a few months until such occurred. The filing of the divorce
upon such a threat lets the court system and the polcie know that a divorce
has been filed. It also establishes a status quo at the time of filing
of the other spouse also being in the home. When the first spouse either
foolishly files that eviction action or the police are called, the divorce
case pending should prevent any action from being taken prior to the divorce
court making a ruling. In a best case scenario, the divorce court might
even grant you exclusive use of the home while the case is pending, regardless
of who actually owns it. Finally, C.R.S. 14-10-107 would also prevent
your spouse from trying to kick you out, as this statutory injunction
effective with the filing of a divorce case prohibits one party from disturbing
the peace of the other.
My wife makes $150,000 per year and is threatening to quit her job. FILE
Over my years as a Denver child support attorney, I have seen instances
in which one spouse or the other thinks he or she can just quit working
to avoid the consequence of child support. This line of thinking is ridiculous.
You don’t just get to quit your job. When laid off or fired, a party
might get a pass from a court when it comes time to asses child support
or alimony. This doesn’t work when you quit. Answering the posed
question, if your breadwinner spouse is threatening to quit her job, or
his job, get the case filed. If he or she quits after that, it will be
fairly easy to show the court he or she quit the job as a reaction to
the divorce filing. Thus, the court should hold him or her to the higher
income potential for purposes of determining income for child support
and alimony purposes. Conversely, if he or she threatens to quit that
dream job and you wait 6 months or a year before filing your divorce,
he or she could argue that you have allowed the new status quo, whether
that is unemployment or a lesser paying job in a different field. A lawyer
doesn’t just get to quit being a lawyer to be a rodeo clown (no
offense to rodeo clowns). Get your case filed and preserve the status quo!
With many questions to still be answered, I promise my readers there will
be no more month off from writing for this divorce lawyer in Denver. In
the meantime, take a look at Colorado statute. Read through the Uniform
Dissolution of Marriage Act, C.R.S. 14-10-101 et. Seq. to learn more about
divorce. See if you can figure out why the remaining questions were answered
as they were before I give you my input.