Over my years of practicing divorce, or family law, in Colorado, I have come to realize the fear that people generally feel at the start of a divorce. They are going into the unknown, whether they are filing the case or have just been served. They do not know what the future holds or what a court will do (beyond what friends and family have told them). Unfortunately, divorces do not generally start with people being happy with each other. One party is usually angry at the other, whether over finances, infidelity, emotional neglect, substance abuse, growing apart, or whatever other catalyst one might imagine causes a divorce.
In moments of anger and fear, people tend to make rash decisions, whether out of that anger or due to not-so-well-thought-out strategic planning. I have seen bank accounts drained, children taken, property sold, debt wracked up, and other spiteful acts committed around the initial time of a divorce being filed, whether just before or just after. As a movie buff, I am reminded of a saying from an old 1930’s or 1940’s series, “what evil lurks in the heart of men? Only the Shadow knows.” Moving forward roughly 70 years, so does the Colorado legislature. As such, our state lawmakers enacted C.R.S. 14-10-107, which sets forth certain prohibitions on the financial or behavioral shenanigans many people might feel compelled to engage in around the time a divorce case begins. In essence, this statutory section offers protection for both parties related to money, property, and the children. It sets forth ground rules for going through the divorce case. Without such rules, anger and spite would rule the day and the Denver area divorce courts would be further backed up with the filing of emergency motions to rectify the initial spiteful or angry wrongs committed.
Pursuant to C.R.S. 14-10-107, there is an automatic temporary injunction which takes effect against the Petitioner upon filing a divorce, and against the Respondent, upon him or her being served. This injunction prohibits essentially 4 things while the divorce case is pending:
1. The transfering, encumbering, hiding, or disposing of marital property without a court order or consent of the other party. However, some of these behaviors are allowed when do in the “usual course of business” or for the necessities of life. In the event that property is disposed of, encumbered, etc. for business or necessity of life needs, notice must be given to the other side, as well as a full accounting.
2. The molesting or disturbing of the peace of the other party.
3. Removing the children from the State of Colorado without permission of the other party or an order of the court.
4. Cancelling, altering, or letting lapse any insurance policy, whether life, health, or property related.
Over the years, I have seen violations of these rules and been faced with questions from clients regarding translation of them:
1. Regarding property, the primary purposes of this part of the injunction relate to dissipation of assets and financial disclosure. There are people out there who attempt to hide assets, or believe that if they squander the assets, let’s say $10K from the joint bank account or $10K taken out of a home equity line of credit on the house, that they will deprive the other party the benefit of his or her share of those funds. Sadly, they forget that attorneys, or forensic accountants, can track the money. They are also unaware that a court has the power to hold them accountable for their actions and for the other’s share of any proceeds squandered. The property facet of the rule also seemingly aims to prevent parties from engaging in the game of “Hide The Money”. The disclosure process in a divorce is all about transparency. Lawyers and judges hate witty shell games.
2. The second part of the injunction related to the peace of the other party means just that. In a practical sense, it does not mean parties can’t bicker or, perhaps, throw an insult at each other now or then. After all, they are getting divorced; they are angry with each other or hurt. It does mean that they are prohibited from calling each other’s employers or going on a smear campaign with friends and neighbors to make the other’s life miserable. It does mean no stalking, incessant calling, or other outrageous behavior. The issue seemingly most often comes up related to actual physical separation and use of the marital home. Once a party moves out of the home, and either files for divorce or is served, there is not more unfettered coming and going. I see this facet of the injunction most often raised to prohibit uninvited coming and going from the home. A person’s home is his or her castle. There is nothing more intrusive than having your soon to be ex coming over as he or she pleases to get property, take photos, snoop, or just hang out uninvited. Court’s recognize the sanctity of one’s abode and will enforce this aspect of the injunction. The key is getting permission to come get your items. They other key is parties moving on emotionally and letting the other do the same.
3. Regarding the third facet of the injunction, out of state truly means out of state. The rule is not just a prohibition on relocating the children or fleeing from Colorado with them. Rather, it also covers that trip to Disneyland or a day trip to Wyoming. Parties need to recognize the strict language of the rule. Fortunately, in most situations, the other spouse will allow that trip without incident, or with minimal bartering. However, there are instances in which one is forced to file a motion with the court to get permission to travel out of Colorado with the kids. Courts hate having to deal with these types of motions, and almost always allow the travel. Parties should keep that in mind when unreasonably prohibiting such. Though this facet seems someone burdensome, it creates a black and white line preventing any gray area argument regarding the children moving from Colorado after the case commences. It also creates legal relief for those occasions in which someone actually tries to run with the kids. Thus, the benefits of the rule far outweigh any burden it creates. Our legislature had the epiphany a few years ago that a similar injunction should also exist in Colorado custody cases.
4. The last facet related to insurance policies is also written in plain English, yet there are those who seem to need interpretation. You cannot change any insurance policy of any kind, including coverage levels, beneficiaries, deductibles, or anything else related to the policy without permission of the other party or an order of the court. You cannot cancel a policy or let it lapse. I find nothing more tragic than seeing the guy who makes $200K per year letting the policy lapse on his wife’s car because he “just forgot.” Courts will have no problem ordering a new policy, as well as attorney fees awarded to the aggrieved party. Of course, if you lose your health insurance due to being fired or a layoff, you not in violation of the rule. If you remove your wife’s 22 and 23 year old, who are from a prior marriage, while the case is pending, you are. Once the divorce is concluded, policies can generally be changed. Most health insurance plans will remove the ex within 30 days of the decree being entered. Until then, just don’t change the policy.
Without these protections automatically put into place, the system would go haywire. Every angry spouse would drain the bank accounts, get 3rd and 4th mortgages on the home, cancel the other’s health and automobile insurance, and move, with the children, to Rio De Janiero. Fortunately, 14-10-107 exists. That is not to say the people do not still violate the provisions of it. When they do, our Denver area divorce attorneys know that courts will take the violations seriously. Though the above stated example is extreme, we see the prohibited behaviors have both a financial and emotional effect on parties. The rules should be followed. Those who violate them should know there is an attorney out there ready to right the wrongs done, and to seek fees from you for your violation.