How the courts conduct business has significantly changed due to COVID-19. With a governmental ban on large gatherings in place, the family law courts in Colorado have updated their practices to eliminate in-person hearings for all but emergency cases, with a few exceptions. Whether your divorce case was in its final stages when the pandemic started or you are looking to file for divorce today, the process moving forward may look different than it would have during pre-pandemic conditions.

What to Expect During a Remote Hearing

One of the most drastic changes within Colorado’s court system has been swapping in-person hearings for virtual ones. If your divorce case requires a trial, your county’s district court may opt to conduct it virtually, using videoconferencing technology, in lieu of an in-person hearing. Remote hearings keep participants safe by avoiding person-to-person contact and the possible transmittance of the coronavirus.

Judges are still moving forward with divorce decrees and other family law cases during COVID-19. Rather than hearing these cases in person, however, most judges are working remotely. Your lawyer can help you file for divorce and navigate the remote hearing process in Colorado. Generally, most counties require that you and your spouse must both consent to do the hearing remotely. This consent requirement does not apply to lesser court events, such as status conferences. The judge will then set a date and time, as well as give you information about what remote tools he or she plans to use. Most courts in Colorado are utilizing WebEx.

Most judges prefer videoconferencing technology so they can see the parties involved and their attorneys. If you do not have access to a computer or device to attend a videoconferencing hearing, however, your lawyer can let the judge know to potentially alter the plans. Once the hearing commences, you and your Denver divorce attorney will have the ability to state your case and speak with the judge as you normally would during an in-person hearing. In the event that a client does not have access to appropriate technology, we have been able to have them use on of our devices, in our office, sequestered in a separate room.

How to Prepare for a Video Hearing

If you and your spouse agree to a video hearing for your divorce case, prepare with help from your divorce attorney. Start by reading over the instructions for conducting business in one of Colorado’s virtual courtrooms, given by the Colorado Judicial Branch. Read the instructions for how to join your virtual courtroom when your hearing date arrives. Prepare for your virtual court date ahead of time for the most seamless process.

• Test out your videoconferencing equipment ahead of time.
• Plan to do the hearing in a quiet location with high-quality internet service.
• Dress professionally, as you would for an in-person hearing.
• Confer with your lawyer before the hearing as to how you will communicate privately, such as through text, if your lawyer will not be with you in person.
• Make sure your device is plugged in or has plenty of battery life. Your hearing could take a few hours or longer.
• Go to a place with little to no background noise. Avoid using speakerphone mode.
• Only one person may talk at a time. Wait for your turn to talk and do not interrupt.

Your lawyer will be able to walk you through the process and explain what to expect. Your legal team can help you prepare for your video hearing as well as defend your rights during the hearing itself. If your hearing encounters any technical problems, your attorney can speak with the judge on your behalf to arrange work towards fixing the technical issue.

Cases Courts Continue to Conduct Hearings On

The Colorado courts may decide to hear your divorce case in person during the pandemic if it meets one of your county court’s exceptions. Each court has the right to determine which cases, if any, it will continue to hear in person. In some counties, the courts will still conduct emergency hearings, such as those involving domestic violence or threats to child welfare, in person. Your family lawyer will be able to let you know if you qualify for an in-person hearing. If not, your lawyer can represent you during a video divorce hearing in Colorado. While the conducting of video hearings has presented various challenges for both courts and family law attorneys, the process has shown to be fairly user friendly for the litigants.

Delays and Complications for Divorces During COVID-19

A COVID-19 divorce will not look the same as a pre-pandemic divorce case in Colorado. Under pandemic conditions, the Colorado courts are shut down to most in-person visits. They are handling new and backlogged nonemergency cases virtually whenever possible. Due to the backlog, the courts are prioritizing emergency cases over others. If your divorce case involves domestic abuse or threats to a child’s safety, for example, the courts will put your case first.

Before COVID-19, the average divorce case in Colorado could resolve within about 8 to 10 weeks. Today, however, the courts are warning parties to expect an added three to four months for delayed divorce processing. If your situation is one that can deal with a delay in processing, you may not need to worry about court proceedings during COVID-19. If you need a divorce sooner for safety reasons, however, proceed with your case and request expedited services for a domestic abuse situation.

If the courts accept and process your case during the pandemic, expect most – if not all – services to be done virtually. Meetings with your divorce lawyer will take place through video technology or over the phone. Your attorney will file the paperwork electronically on your behalf. Many judges in Colorado are using video technologies to conduct trials without in-person meetings if a divorce case goes to trial. Your Denver family law lawyer can help you navigate the new electronic way to handle a divorce case during the pandemic.

Cases the Courts Are Hearing

In March and April, the Colorado Supreme Court Chief Justice ordered courts across the state to suspend many operations to help decrease the spread of the coronavirus. This order called for a suspension of jury trials, other than criminal trials with imminent deadlines. It allowed the courts to remain open for other matters, including restraining order hearings, bail hearings, juvenile detention hearings and motions to restrict parenting time.

Municipal courts can make their own administrative decisions on whether or not to remain open. For the most part, family courts in Colorado are only currently open for emergency cases until further notice. If your divorce case is a nonemergency matter, you may have to wait until the courts reopen for your trial date. You could also try to settle your divorce case without going to court for a faster process.

Divorce Alternatives to Avoid Going to Court

COVID-19 might have significantly delayed the family court system in Colorado, but that does not necessarily mean it will affect your divorce case directly. It may be possible to get a divorce without a long delay if you and your spouse can achieve a settlement through a collaborative divorce process. A collaborative divorce is one in which you both work together to agree upon the terms of your split. It is an alternative dispute resolution process.

If you and your spouse can compromise on things such as parenting time and property division, a judge in Colorado may sign off on your divorce without requiring litigation. Working with a divorce attorney in Denver could improve your chances of achieving a collaborative divorce that does not become one of the thousands of backlogged cases in Colorado. Skipping the in-court process can be the best way to achieve an efficient divorce during the pandemic.

By: Plog & Stein, P.C.

Over the last few weeks and days, all Colorado residents have been beset with the fears and challenges that have come with the Coronavirus epidemic. While the the issues we hear about in the media range from serious and real concern regarding health to those regarding groceries and toilet paper, nothing is really being said about how this virus is impacting child custody and divorce cases.

Understandably, many people have questions and fears related to their children and their safety. Do they have to go for parenting time (visitation)? What do I do when the other parent won’t let me have my parenting time because they are concerned about COVID? Am I required to allow parenting time given the current situation? Will I get in trouble if I don’t? Are the courts even open? These are some of the questions our Denver family law attorneys have faced and dealt with over the last few weeks.

The bottom line is that COVID-19 has raised a whole series of questions that no attorneys in Colorado, or perhaps the nation, have had to deal with before, until now. To further add confusion to the situation is the fact that there are no written directives from the courts, or past case law precedents, for dealing with COVID-19 and parenting time. One cannot fault the courts, as this is all new to them as well.

Generally, it is any court’s expectation that orders are to be followed. That does not mean everyone will do so and we have seen cases in which people have blatantly just said they are not going to allow visitation to proceed. Given the lack of clarity, the best advice at this point is for people to use common sense and good judgment, and to adhere to the normal course of business. That said, if there is truly a situation in which one parent knows (and can prove) that the other parent is going to put the children at risk, there are legal measures that can still be taken to protect the children, such as a Motion to Restrict Parenting Time pursuant to C.R.S. 14-10-129.4.

Are Courts Open During COVID-19?

To be clear, all of the Denver area courts are functioning, though in a limited fashion. Specifically, most of the courts, whether Douglas County or Boulder, have indicated that they are still hearing emergency family law cases. However, those emergencies have been limited to either restraining/protection orders or motions to restrict parenting time. With those cases, the courts are accessible and hearings can ultimately be conducted either in person or likely by phone. Additionally, while courts are not going to conduct hearings aside from those two distinct emergency situations, they are still operating to the extent that documents can still be filed (likely by mail without an attorney) and limited business can still be conducted. Attorneys have the ability to file anything electronically and Colorado has now made that option available for non-attorneys as well.

Beyond dealing with emergency situations, the Colorado courts are essentially closed to public access. How long the closures will vary. For example, Jefferson County indicates it will be closed for the normal course of business activities until May 1. Arapahoe and Douglas County indicate they will be open normally again as of April 3. All of this is, of course, subject to change depending on how the ongoing COVID-19 situation unfolds. The Colorado Judicial Branch does have a COVID-19 section on its website and provides county-by-county information regarding what each judicial district court is going.

Keep in mind that many law offices, such as ours, are open. Attorneys are generally able to work and conduct business remotely, including meeting with clients or potential clients via telephone or a web-based service, such a Zoom. We understand everyone’s hope is that things resume to normal soon. For now, we must all make due in this new, temporary reality. that new reality includes us being available and ready to act, just not in-person.

Coronavirus Affecting Parenting Time and Child Custody Orders

As relates to parenting time and child custody orders, we are all aware that the Colorado governor and various counties or cities have put forth various orders or directives regarding staying at home, etc. Some of those orders, such as the one issued in Denver on March 23, indicate that people may travel for purposes of caring for a family member. “Essential travel” includes travel to care for minors or dependents. Additionally travel to return home from other jurisdictions is also authorized. The same holds true for the orders issued for Douglas, Arapahoe, and Adams Counties on March 25, 2020. The order issued by Governor Polis on that same day is a little less clear in that it says travel to care for a “family member,” without specifically stating “child.” The Colorado order does allow travel to return to a residence. Looking at these order objectively, it is implicit that parents can travel and have kids travel to and from homes for parenting time. None of these orders expressly restrict or suggest that parenting time and parenting time exchanges are to cease or that kids cannot go from one home to the other. There is not an absolute ban on leaving your home and it will not likely be looked favorably upon by a court if one parent denies parenting based solely on the COVID-19 crisis or these governmental orders. It would have been nice if the counties or State had given more clear directives to families and attorneys as relates to parenting time. Unfortunately, that did not happen. Given the chaos, it’s understandable that something like this might slip through the cracks when crafting these orders.

Thus, things are up for interpretation. My interpretation is that orders do need to be followed, though as an attorney, I could argue either side of a parenting time dispute tied into COVID-19.

It should be noted that there are many people operating under long-distance parenting plans, where they may be required to allow their children to go out of state for visitation, such as for spring break. There is no governmental restriction on this. At the same time, no parent wants their child to fly on a plane right now. With no real guidance from the court systems or these governmental orders, it might be helpful to try to engage in open discussions with the other parent to see about delaying trips to a later time, make-up parenting time, etc. Not all parents get along and there are going to be parents who were difficult before this crisis and who will be difficult during it as well. Keep in mind that airline flights are somewhat limited and the federal government has discouraged, not banned, domestic travel.

As a parent myself, I understand the concerns, fears, and frustrations that all parents have particularly given the unknowns at this time in terms of how courts expect COVID-19 to be handled related to parenting time.

If you have questions or concerns regarding your child custody and visitation situation it would be advisable to consult with a family law attorney. This also holds true if you are in the midst of or starting a divorce case.

By: Jessica A. Saldin

During the 2019 regular session, Colorado’s legislature passed a new law regarding protection orders. This law did not replace or change the old law; it simply forms a separate protection order basis. This new law governs what are now called “Extreme Risk Protection Orders.” This new law allows a family member or household member of an individual, or a law enforcement officer or agency, to file a petition for a temporary extreme risk protection order.

The issue of these extreme risk protection orders has been the subject of much debate in the media over the last few months. The intent of this blog post is not to weigh in on the political ramifications of the issue or to advocate for either side. Rather, the intent is to provide legal information regarding these new orders, which might, in some extreme circumstances, intersect with family law cases. It should be noted that with restraining orders between domestic partners, federal law requires the removal of firearms anyway. Thus, it is more likely that these types of orders will be sought in non-domestic violence situations. Of course, that’s yet to be seen.

How is it Filed?

Much like other protection orders in Colorado, this request is filed without notice to the individual against whom a protection order is being sought. Unlike other protection orders in Colorado, though, the sole basis and focus of an extreme risk protection order is whether an individual’s possession of firearms pose a significant risk of causing personal injury to oneself or others. Therefore, the petitioner requesting such a protection order must make this allegation, and must be accompanied by an affidavit stating the specific statements, actions, or facts that give rise to a reasonable fear of future dangerous acts by the restrained individual. The petition must also identify the number, types, and locations of any firearms though to be in the restrained party’s ownership, possession, custody or control; whether the restrained party is required to possess, carry or use a firearm as a condition of employment; whether there is a known existing other protection order regarding either party; whether there is a pending lawsuit or action between the parties; and, whether the requesting party informed a local law enforcement agency regarding the restrained party. Also, unlike other protection orders, this law specifically requires the filing party, to the best of their ability, to notify the law enforcement agency in the jurisdiction where the restrained party resides, of the petition and hearing date with enough advanced notice that the law enforcement agency can participate in the hearing if they so choose.

Similar to other protection orders, once the petition is filed, the court may grant a temporary extreme risk protection order without the restrained party’s participation. However, a hearing must be scheduled for the restrained party’s participation within 14 days of the date the temporary order is issued. Unlike other protection orders, the question at that hearing is not whether the extreme risk protection order should be made “permanent” but whether a 364 day extreme risk protection order should be issued.

Evidence For an Extreme Risk Protection Order

If a temporary extreme risk protection order is issued, it will require the restrained party to surrender all firearms in their custody, control or possession, and any concealed carry permit issued to them, to the law enforcement agency in their jurisdiction. At the hearing, the court then has to determine if, by clear and convincing evidence, the restrained party poses a significant risk of causing personal injury to themselves or others by having in his or her custody or control a firearm, or by purchasing, possession, or receiving a firearm. In determining whether such grounds exist, the court may consider any relevant evidence. Examples of relevant evidence in the statute include:

• A recent act or credible threat of violence against self or others, whether or not such involved a firearm
• A pattern of acts or credible threats of violence within the past year
• A violation of a civil protection order
• A previous or existing extreme risk protection order and a violation of such
• A conviction for a crime that included an underlying factual basis of domestic violence
• The ownership, access to, or intent to possess a firearm
• A credible threat of, or the unlawful or reckless use of, a firearm
• The history of use attempted us, or threatened use of unlawful physical force against another person, or history of stalking another person
• Any prior arrest for a crime listed in C.R.S. 24-4.1-302(1) or 18-9-202
• Evidence of the abuse of controlled substances or alcohol
• Whether the individual is required to possess, carry or use a firearm as a condition of employment
• Evidence of recent acquisition of a firearm or ammunition

If the court finds that such credible risk exists, the court is to issue an extreme risk protection order for a period of 364 days.

How is an Extreme Risk Protection Order Removed?

The termination procedures for extreme risk protection orders are also different than other protection orders. The restrained party may submit one written request for a hearing to terminate the protection order for the period that the order is in effect. Additionally, if a 364 extreme risk protection order is entered, the court is to notify the requesting party of the impending expiration of the order, prior to the expiration date. The requesting party, a family or household member of the restrained party, or a law enforcement officer or agency may, by motion, request a renewal of such order at any time prior to its expiration.

The other unique aspect of these types of protection orders is that the court is required to appoint an attorney for the party defending against the protection order. That party is entitled to hire their own counsel but, until such time, they are to have a court-appointed attorney.

It is important to keep in mind, if considering one of these protection orders, that they don’t provide any specific protections for the requesting party beyond the surrender of firearms. Unlike standard protection orders, the restrained party is not prevented from contacting the requesting party, seeing the requesting party, living with the requesting party, etc. Therefore, in domestic violence situations, filing a traditional protection order likely still provides more protection as the court still has the authority to require the other party to not possess firearms. However, this new law does provide a unique level of protection. Notably, only 1 day after this law went into effect, the first temporary extreme risk protection order was granted. Contact our office online, or call us at (303) 781-0322 for assistance with an extreme risk protection order or other types of protection orders. Our attorneys have over 75 years of combined experience representing family law cases throughout the Denver metro area.

Chances are if you are considering divorce, you are facing difficulties in your marriage that you don’t believe you and your spouse will be able to overcome. Perhaps you have even made the decision to divorce, but are unsure what the best time to file is. Here are some facts that are intended to help with this decision. Please note that this is not an exhaustive list but rather a list of some (non-emotionally based) reasons why it may be advantageous to delay, or not.

Reasons to Delay Filing to a Later Date

1. Collecting on Your Spouses Social Security.
   If your marriage lasted more than ten years, you may be able to collect on your spouse’s social security after divorce. If you are close to the ten-year mark, but not quite there and you think that you will otherwise qualify to collect on your spouse’s social security, you may want to time your filing for divorce such that you will reach the ten-year mark before your divorce is finalized.

1. Waiting until the children are older.
   If your children are close to emancipating, you may want to delay divorce until they are at least 18 or heading off to college. Divorce can often be simpler when the children are either not involved (because they are no longer minors) or when the children are already spending most of the year away from both parents. The age of majority tied into child support obligations, 19, might also be something to consider when pondering delaying a divorce. At age 19, there are generally no more risks or entanglements tied into support of the children. Additionally, if your children are close to school age, you may want to delay until they start school. Many 50/50 parenting plans are considered more developmentally appropriate when the children are school-aged.

1. Maintenance considerations.
   If you are hoping to get maintenance (alimony) from your spouse, you may want to delay. Under the Colorado maintenance guidelines, maintenance is appropriate when a marriage has lasted at least three years. The guidelines further suggest a longer-term, the longer the marriage lasts. Conversely, if your spouse is temporarily unemployed, attending school, or in a state of job flux, you might want to consider waiting for their income situation to be stabilized and/or increased.

1. Other financial considerations.
   In some cases it is advantageous to delay so that you can get yourself financially prepared for the divorce. Because it can take several months before a judge makes any orders in your case, you will want to make sure you can financially get through those few months, even if your spouse decides to cut you off. Similarly, you may be able to gather information regarding assets while you are still married that would be difficult to access once divorce begins.

Reasons to Divorce Now

1. Maintenance considerations.
   If you would owe your spouse maintenance (Alimony) you may want to get the divorce started as soon as possible. Under the Colorado maintenance guidelines, maintenance is appropriate when a marriage has lasted at least three years. The guidelines further suggest a longer-term, the longer the marriage lasts. If your spouse isn’t contributing financially and you have asked them to, the longer you live with this situation, the more likely the court is to see you as “ok” with this situation, which could hurt arguments to not pay maintenance.
2. Stop the Bleeding.
   If you notice your spouse making large transfers of money that are questionable or your spouse is threatening to take the children, you may want to file immediately. Once you file for divorce, an automatic injunction attaches which prohibits you or your spouse from disposing of assets outside the ordinary course of business and from leaving the state with your children without your consent. Both could act as protections to you.
3. When do you want to be divorced?
   By statute, the soonest you can be divorced (even if everything is settled between you and your spouse) is 91 days after you have filed. If you want to be divorced by a certain time, you should keep this in mind. One reason you may want to be divorced by a certain date is to file taxes as single or head of household. If this is your goal, you need to be divorced by December 31.
4. Do you want to be divorced under Colorado Law?
   If your spouse is moving or has moved to another state and you want to make sure the divorce happens here in Colorado and under Colorado law, you will want to file before they do. Whichever court establishes jurisdiction first will dictate the location and laws for the divorce.

The decision to divorce can be life changing and understanding your rights, options, and risks tied into the timing of your decision is important. Our divorce lawyers in Denver can help you make the right decision based on your unique situation. Contact us online or call our office to speak with one of our lawyers.

By: Plog & Stein PC

Many people are reluctant, nervous, or even fearful of going to court. This is understandable because most people have never been to court and find the formal setting uncomfortable. Additionally going to court can be inconvenient to people who live far away from the courthouse (sometimes even out of state) or for people who have to take time off of work during the court’s business hours. Given the inconvenience of going to court, people often ask if they can just “file the papers.” In essence, what they want to know is whether it is possible to get divorced without going to court.

In Colorado, you CAN get a divorce decree without ever stepping foot inside the courthouse. If this is your goal, the most reliable way to ensure that you avoid ever going to court (and, in some cases, the only way) is for you and your spouse to consult with and work with attorneys. Even if all necessary documents are filed and full agreement has been reached, the parties will still need to attend a quick, final hearing unless they have submitted what is a called an “affidavit for decree without appearance of parties.” This document basically lets the court know that everything has been filed and asks the court to enter the divorce decree without anyone having to physically appear. This Affidavit can only be used as a means to avoid court altogether if there are no minor children of the marriage or, if there are kids, both parties have attorneys representing them in the divorce.

The aim in every divorce case is to receive a declaration to all concerned that you and your spouse are no longer legally married. Such declaration is accomplished by obtaining a decree of dissolution of marriage that has been signed by a judge or magistrate.

In general, before a judge or magistrate will sign your decree, thereby divorcing you and your spouse, he or she is required to make factual and legal findings including:

• That the marriage is irretrievably broken.
• That it has been 91 days since the court obtained jurisdiction over both parties.
• That marital property has been divided equitably.
• That any provision with respect to maintenance (alimony) for either spouse is fair and not unconscionable.
• If there are children of the marriage, that parental responsibilities have been allocated in a manner that is in the best interest of the children.

A court does not necessarily need to hold a formal hearing in order to make these determinations, especially if both parties have reached a full settlement agreement and there is no genuine issue of material fact. However, the court does need financial and practical information from the parties in order to make the findings. This information can be provided to the court in writing by filing various documents.

Filling for Divorce On Your Own

Although the court can provide forms for divorcing parties to fill out and use for this purpose, knowing what to file, how to fill it out, and if you have everything can be confusing. Furthermore, doing it all without a Denver divorce lawyer typically requires going to the courthouse for a variety of reasons, including physically handing the documents to the clerk for filing; appearing at the initial status conference, and appearing at a non-contested, final hearing.

Divorce attorneys know exactly what needs to be filed, what information needs to be in a particular filing, and when documents ought to be filed to accomplish certain goals. They can file documents on your behalf so that you do not have to go to the courthouse to hand them to the clerk. They can also advise you regarding certain documents that could be completed and filed with the court in order to eliminate the need for you to appear at an initial status conference or a non-contested hearing.

Furthermore, attorneys can draft important documents, such as separation agreements and parenting plans, in a manner that the court is more likely to approve. If the court has a question about what was filed, attorneys can often address such questions quickly and without need for the parties to appear. Conversely, vague, incomplete, or unclear agreements can lead to the court requiring the parties to appear to explain, clarify, or give more detail to their agreements

Assuming all necessary documents are on file with the court and the parties have submitted an affidavit for decree without appearance, a couple can get divorced from start to finish without setting foot in a courthouse. All that being said, every once in a while we do see a new or random judge make everyone show up for the final, uncontested divorce hearing, despite all requirements being met. These instances are few and far between.

By: Stephen J. Plog

While we’ve written about this subject before, it’s been a while. From time to time, safety or endangerment issues can arise in a child custody case. These types of issues can range from one parent having a drug or alcohol problem which limits their ability to safely parent, to a parent engaging in emotionally or physical abusive behaviors. In instances in which these types of safety issues present an immediate risk to the children such that there are concerns regarding their safety with one of the parents during their court-ordered parenting time, Colorado statute offers an emergency remedy in the form of a Motion to Restrict Parenting Time pursuant to C.R.S. 14-10-129(4).

When Can it Be Filed?

Pursuant to C.R.S. 14-10-129(4), a motion to restrict parenting time can be filed if the children are in “imminent” physical or emotional danger. “Imminent” means immediate and the court will be looking for acute and current concerns tied into the safety of the children. Once a motion to restrict parenting time is filed, the parenting time for the accused parent ceases, unless supervised parenting time with a licensed mental health professional can be arranged. In most cases, once the motion is filed, the court will do an initial review and will either enter an order upholding the statutory restrictions and requiring the setting of a hearing, or will deny the motion, usually based on a lack of information or allegations amounting to “imminent danger.” If the motion is denied the process stops. If the motion is granted, statute requires that a hearing be conducted within 14 days. At that hearing, the party filing the motion will be expected to provide evidence supporting the raised allegations.

In situations of imminent danger, it’s important to file your motion to restrict prior to the accused parent’s next scheduled visitation with the children, so as to ensure their time stops and the kids are protected. It should be noted that while statute indicates parenting time stops upon filing, problems can arise if the accused parent calls the police to seek assistance in getting the kids. Not all law enforcement officers know the dictates of C.R.S. 14-10-129(4). Some will indicate they need to see a court order, which you or may not have at that point in time. If the court does generate an order, it’s important to have a copy of both your motion and that order with you. Some officers may just say it’s a “civil matter” and won’t get involved. It’s not often that police are called, but I’ve seen it happen enough time over the years to at least mention it.

In some cases, the court will require the moving party to contact the division clerk to set the hearing. In others, the court will just set a date and send out notice. Each courtroom and county is different and there’s no uniformity in procedure. Thus, you should be prepared to be proactive in interacting with the court. If you fail to ensure that a hearing is conducted within the 14 days, the restrictions automatically stop.

Evidence of Imminent Danger

For hearing, the filing party will need to be prepared to prove to the court that restriction is necessary. Proving safety issues takes more than just making good allegations. Just going into court and trying to say, “my child told me …. about the other parent,” is not going to be good enough and would likely garner a hearsay objection. Proof needs to be tangible. Absent blatant text messages or emails from the other party, there needs to be some sort of evidence from an outside source, such as a therapist, a teacher, a doctor, law enforcement, or someone who can come to court and testify. I will often advice clients that this proof should be available prior to even filing. Witnesses can be subpoenaed to court if need be. In some cases, witnesses may not be needed, perhaps in a situation where the other parent has been charged with child abuse, or gets a DUI with the kids in the car. In those case, court documents from the criminal case might be sufficient to show that a danger exists. Each case is different and your child custody attorney will know what is needed to prove your case to the court.

If the filing party prevails at the hearing, the court will generally issue an order for supervised parenting time, which also includes a plan for either monitoring the problem, with everyone coming back later for a review, or perhaps specific hurdles or milestones the accused much reach for the restrictions to be lifted. Oftentimes, the filing of a motion to restrict parenting time also leads to a more lasting modification of parenting time down the road. In some cases, a child custody expert, such as a child and family investigator may be appointed.

Before filing your motion to restrict parenting time, you should be aware that statute also provides for a penalty for those who proceed without merit or proof. Specifically, Section 129(4) authorizes the court to award the accused attorney fees if the motion to restrict was without merit. Both the burden of proof and consequences for filing a spurious motion are significant. As such, it’s very important to make sure you have strong allegations and will be able to prove them at trial. It’s advisable to at least consult with a child custody attorney prior to going down the restriction road.

In my next article, I will focus on how the accused should handle responding to or dealing with a motion to restrict. Though many motions are valid and circumstances necessitate restriction, there are also many motions filed with weak, unprovable, or even false allegations. Regardless of the strength of the motion, the accused is required to take action and also prepare for hearing. As nothing matters more than the safety of children, courts take motions to restriction parenting time seriously. So do I.

By: Jessica A. Saldin

When proceeding through a divorce case in Colorado, there are sometimes unique property items that raise special questions when it comes to the treatment of those items for division purposes. For example, trusts, business interests, PERA accounts, etc. all have unique aspects which have been discussed in previous blog posts. Another property item that has unique qualities is stock grants or stock options in a divorce. Depending on the status of those items, they may not even be considered a property item that is up for discussion. If the stock options are vested, they are considered property and would then be divided as any other property item (i.e., is it marital or separate, if marital how is it going to be divided to reach an equitable distribution- see prior blog posts on the determinations of marital v. separate property and how marital property is divided).

If the stock options are not vested, though, additional inquiries need to be made in order to determine whether the stocks are marital property or not. Unfortunately, the inquiry is not as straightforward as whether the stock options are vested. Unvested stock options can still be considered marital property subject to division. The main inquiry relates to the purpose for which the stock options were granted. If the stocks were granted for past performance, i.e., as a reward for a good job done, in lieu of a bonus, etc. and have no restrictions on exercising other than awaiting the vesting period, those stocks are still considered property and are subject to division in a divorce case. That is not the end of the inquiry, though, as obviously those stocks must be given a value before they can be divided. The party retaining the stock options will argue the value should be zero since the options are not vested and cannot be presently exercised. The party not retaining the options, and seeking an equalization payment or property off-set for the stocks, will likely argue they should be valued based on the stock price for the options at the date of divorce, regardless of whether they can be exercised or not.

Neither argument is necessarily the correct valuation. Putting zero in the valuation falsely lowers the recipient’s overall marital property because the stocks do have some value and, once vested and exercised, will be marital property to the recipient. Likewise, putting the current stock price as the marital value falsely increases the recipient’s overall property value because it does not account for risk of a drop in the stock price (i.e., depending on the vesting date, the recipient could have to wait years before the options vest and can be exercised and there is no guarantee the stock price will be as high at that time as it is at the time of the divorce). Therefore, the valuation is usually somewhere in the middle and, if the parties cannot agree on a value, they may need to utilize the services of an expert. Such expert is typically going to be a CPA who will consider the market, risk factors, length of time before the options vest, etc. and will put a value on the options for the purposes of property division. As valuation experts can be costly, my two cents would be to first assess how much money or value is really being argued over before shelling out too much. Thus, a cost/benefit analysis is certainly warranted.

The other possibility is if the stock options are granted for a guarantee of future performance. For example, if an employer wants to give an employee an incentive to remain with that employer, they can give them a grant of stock options that will not vest unless the employee is still employed on the future vesting date. In this case, the options should not yet be considered property because the requirements that need to be met before the options can vest will not be met until after the divorce. For example, if the options will not vest for another two years after the divorce, the employee spouse would need to maintain that employment for that two year period before the stocks could vest. Thus, if the requirements that must be met before the stock can vest (other than just waiting out the time for vesting) have not occurred prior to the dissolution, the stock grants should not be considered property subject to division as part of the divorce.

By: Sarah T. McCain

In every Colorado divorce proceeding, the court will require each party to complete and file a Sworn Financial Statement. This requirement regarding financial disclosures in a divorce comes from C.R.C.P. Rule 16.2. Among the variety of items that you are required to list on that SFS is debt, including both marital and separate debt items. This includes, but is not limited to, credit cards, student loans, outstanding tax obligations, and medical obligations. On this document, it is important to list all of your debt so that the court is able to properly divide all of the marital debt that has been incurred during the marriage. One question that attorneys get in these cases is whether the debt is joint marital debt which should, thus, be divided. It is a common question and one that is derived from a common misconception that if the debt is not in your name, it is not marital. This is not the case in most situations.

There are some debts that do follow this standard for the most part. Specifically, student loans are generally something that go with the party who incurred the loan for the purpose of their education. The student is usually the one that is benefitting from the education and thus, the debt goes with them. Of course, nothing is so black and white. There are circumstances when a student loan can be divided as marital debt. When a student loan obligation is incurred during the marriage, the court does have the authority to divided the student loan obligation between the parties. In doing its analysis, the court may look at things like whether proceeds from the loan were used for marital expenses, such as mortgage or utilities. A court might also consider whether that loan ultimately benefits both parties financially in that the loan may have led to a degree, which led to a better job, which may impact the spousal support or alimony the other party pays or receives. Therefore, though the norm might be to have the person incurring the student loan be responsible for paying it, courts can divide student loan debt and may do so in certain circumstances.

When tax obligations are to be divided between the parties, it can be easy to argue that if there was a discrepancy in the income, that the tax obligation should be divided proportionate to the parties’ individual incomes. However, the norm in dividing tax debt would be for it to be divided equally, regardless of the income disparity, as both parties benefitted from that income. Therefore, both parties will more likely be responsible for the division of that tax debt.

Credit card debts cause significant confusion when dividing them. When a credit card is in one party’s name, it can still be marital property. When a debt has been incurred for marital purposes, it is marital, despite the name on the card. The next question is then what is a debt for marital purposes? When a person uses a card for groceries, gas, normal clothing, or really anything for the home or the family, it is considered marital. Litigation or arguments can arise regarding debt tied into the purpose for which is was incurred. Credit card debt for things like extravagant, individual expenditures, such as diamonds, furs, or a week stay for on spouse at the Four Seasons in Bali may not be considered marital.

In any case, detail matters. During a divorce case, we, as attorneys, do have the option of issuing discovery. This allows us to ask for two years of debt statements, or more, from the other party. By getting the actual credit card statements, attorneys are able to track spending to look for the abnormal or excessive. Going through two years of debt statements can be time consuming prior to litigation. Furthermore, the court generally does not have the time to look through multiple statements to review credit card transactions to determine if it marital or not. If it is a large transaction that is clearly not marital, then it is likely worthwhile to raise the issue at your divorce hearing. However, if you are pointing out small transaction after small transaction, the court may request that you move on and will then order the balance to be split equitably. The court simply does not have time on the docket to go through a significant number of debt statements. When debt is an issue, it is imperative that your Denver divorce lawyer is concise in presenting your arguments to the court, which need to be backed up by the specific statements of relevance.

Finally, when you are dividing up debt as part of a dissolution proceeding, it is always a good idea to request statements from as close to the date of marriage as you can to ensure that you are not being awarded debt that was incurred prior to the marriage taking place. Debt incurred prior to the marriage is not going to be considered “marital debt” and is not part of the overall analysis. These statements should be provided as part of the initial disclosures, but if they are not, you do have the ability to request statements as part of the discovery process.