Divorce w/Children

OVERVIEW OF  PROCESS

• FILE: The first step is to file the Petition for Dissolution of Marriage or Legal Separation.  Second we will serve or have Spouse sign a Waiver of service.
• MEDIATION can be ordered by the court at any point prior to any court hearing
• TEMPORARY ORDERS HEARING A Temporary Orders Hearing can be requested by either party at any point, and we advise meeting early in the process to facilitate the best resolution for you in the end.
• 90 DAY WAITING PERIOD There is then a ninety (90) day waiting period once the Service or Waiver of service has been property completed in order for the Dissolution or Separation to be final.

DEADLINES BEGIN

•  SWORN FINANCIAL STATEMENT / DISCLOSURES Now the deadlines begin…and only 42 days after service is complete the Sworn Financial Statement / Disclosures are due to the Court.  Below in discovery we elaborate on how complex and time consuming gathering these documents and obtaining these figures can be, especially within the deadlines imposed by the court.
• MANDATORY INITIAL STATUS CONFERENCE Also only 42 days after service there is a Mandatory Initial Status Conference or Stipulated Case Management Order due to the court.

SETTLE OR PERMANENT HEARING / TRIAL After the 90 day waiting period, if agreements have been reached on all issues and the parties agree to settle, or there is still an irresolvable dispute between the parties, the documents may be filed to complete the dissolution or separation.

• SETTLEMENT If there is a complete settlement between the parties on all issues they may file the Affidavit of Decree (can be without appearance if both parties are represented by an attorney), the Proposed Decree for Dissolution of Marriage or Legal Separation, Support Order, Child Support Worksheet, Parenting Plan, and Separation Agreement and Support Orders.
• IRRRESOLVABLE DISPUTE If there is an irresolvable Dispute between the Parties they must file a Notice to set Final Orders and comply with the Case Management Order issued at the time of setting.  Each side much submit a Proposed Separation Agreement, Parenting Plan, Support Order and the Child Support Worksheet and prepare for a Permanent Orders Hearing / Trial.

JURISDICTION

• Jurisdiction lets us know what court we can file the Petition for Dissolution in and how.  It also lets us know what court has the authority to make an initial custody determination.  In order to file for Divorce / Dissolution in Colorado or Legal Separation and ask the court to make an initial Parenting Responsibility determination, two conditions have to be met.
• 1)  One of the parties must have been domiciled in the state of Colorado for ninety (90) days before the petition is filed.  Domicile means residence, although there is sometimes dispute over where someone’s domicile legally is.

AND

• 2)  The Petitioner (party asking for the divorce / dissolution) either enters into a joint petition with the respondent, the respondent agrees to accept service and does, or the Petitioner obtains valid service of process by other legal means such as hiring a process server to serve them in person
• It is also possible to file for a Petition for Allocation of Parental Responsibilities and not Divorce / Dissolution or Legal Separation, however it is rare.

DISCOVERY AND DEADLINES

• Discovery is a very complex process in all family law cases and has strict guidelines and rules.  If you do not have legal counsel, you will be held to the same standards as an attorney and requirements of producing, on time, all of the materials listed below and in some instances many more.
• GENERAL REQUIREMENT – The general rule is that both parties must provide full and honest disclosure of all facts that materially affect their rights and interests and those of the children if any are involved in the case.  This is an absolute, affirmative duty to disclose information without waiting a specific or even general request from the opposing party.  In addition to the extremely broad rule, there are also some specific guidelines and deadlines govern what is required to be turned over and when.

MANDATORY DISCLOSURES – Below is a list of Mandatory Disclosures that are due within 42 days after the service of the Petition.  The mandatory disclosures include the following:

• Sworn Financial Statement
• Most recent three years of personal and business income tax returns.
• Last three years of personal financial statements.
• Last three years of business financial statements.
• Real estate documents reflecting title and value.
• Documents creating debt and the most recent debt statements showing balance and payment terms.
• Documents stating the current value of any investments.
• Documents reflecting employment benefits.
• Documents reflecting retirement plans and current values and plan summary descriptions.
• Most recent documents identifying all bank accounts and other financial institution accounts and stating current values.
• Documents verifying income from employment, investment, self-employment, and any other sources.
• Documents related to child care expenses.
• Documents related to life, health, and property insurance policies.
• Documents related to extraordinary expenses for the children.
• CERTIFICATE OF COMPLIANCE Required to be filed with the mandatory disclosures.  If you do not file a document you have to state a reason why you did not file it.
• SUPPLEMENTING THE DISCLOSURES There is a continuing duty to supplement or amend any disclosure in a timely manner.
• FIVE YEAR LOOK BACK Pursuant to rule, the court retains the ability to look back 5 years after the entry of final decree or judgment to allocate material assets that were omitted or misstated and that materially affect the division of assets and liabilities.  It does not apply to omitted income, which typically would be addressed in a motion to modify child support or maintenance.
• WITNESSES All witness have strict restrictions on when and what material must be provided to the opposing party at certain points throughout the proceeding.  For instance, 63 days prior to the hearing all expert witnesses must be endorsed and within 56 days a letter summarizing their opinion must be provided.  Rebuttal reports must be provided 21 days after receipt.
• (CFI) CHILD FAMILY INVESTIGATOR – A parental responsibility evaluation must be submitted 20 days prior to a hearing, it may be submitted by a CFI or other qualified professional.

CUSTODY / PARENTING TIME & DECISION MAKING

• INTRODUCTION – Custody and Parenting time both refer to the amount of time a parent has to spend with the child.  The courts and legislature have now split what used to be called custody into two parts, Parenting Time and Decision Making Responsibility.  When the Petition for Dissolution or Petition to Allocate Parental Responsibilities is filed, the court will look at different factors and take different facts and evidence into consideration and make orders on each separately.  However, the standard the court uses doesn’t change, it is always the Best Interest of the Child Standard.
• BEST INTEREST OF THE CHILD The court is to determine the allocation of parental responsibilities, including parenting time and decision-making responsibilities, in accordance with the best interests of the child standard, giving paramount consideration to the physical, mental, and emotional conditions and needs of the child.  The Court is never to take into consideration any conduct of a party that does not affect that party’s relationship to the child, it should not presume that any person is better able to serve the best interests of the child because of that person’s gender, it should not be impacted by the fact a party requested a genetic test, and if a part is absent or leaves the home because of an act or threatened act of domestic violence committed by the other party, the absence will not be considered by the court.

PARENTING TIME

The court will take into account the following factors when considering what is in the best interest of the child:
• The wishes of the child’s parents as to parenting time
• The wishes of the child if she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule
• The interactions and interrelationship of the child with his parents, siblings, and any other person who may significantly affect the child’s best interest
• The child’s adjustment to his or he home, school, and community
• The mental and physical health of all individuals involved, except that disability alone shall not be a basis to deny o restrict parenting time
• The ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party
• Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support
• The physical proximity of the parties to each other as this relates to the practical considerations of parenting time
• Whether one of the parties has been a perpetrator of child abuse or neglect which shall be supported by credible evidence
• Whether one of the parties has been a perpetrator of domestic violence, which factor shall be supported by a preponderance of the evidence and
• The ability of each party to place the needs of the child ahead of his or her own needs

DECISION MAKING RESPONSIBLITIES

• The court can allocate the decision making responsibilities mutually between both parties, or individually to one or the other party, or any combination thereof.  Major Decisions shall be explicit such as: Health care, education, religion and should include a catch all phrase stating who shall decide all other major issues affecting the physical or emotional health and well-being of the child that are not specifically enumerated.

The court shall consider all factors listed above for allocation of Parenting Time but also:

• Whether the parties can cooperate and make decisions jointly
• Whether the past pattern of involvement of the parties reflects an ability to provide a positive relationship with the child as mutual decision makers
• Whether any decision regarding decision making responsibility will promote more frequent or continuing contact between the child and each of the parties
• Whether one of the parties has been a perpetrator of child abuse or neglect
• If the court makes a finding of fact that one of the parties has been a perpetrator of child abuse or neglect, then it shall not be in the best interest of the child to allocate mutual decision-making with respect to any issue over the objection of the other party
• Whether one of the parties has been a perpetrator of domestic violence, which factor shall be supported by a preponderance of the evidence
• If the court makes a finding of fact that one of the parties has been a perpetrator of spouse abuse, then it shall not be in the best interest of the child to allocate mutual decision-making responsibility over the objection of the other party, unless the court finds the parties are able to make shared decisions about their children without physical confrontation and in a place and manner that is not a danger to the abused party or the child.

OUTSIDE PROFESSIONAL INVOLVEMENT (CFI) (LRC)

• GENERAL – There are several outside professionals that are involved in Parental Responsibility cases.  The most common are the CFI and more recently the ….  There is also the possibility of a Legal Representative of the Child but only in rare circumstances.

CHILD AND FAMILY INVESTIGATOR (CFI)

• The CFI is appointed by motion of a party or on the court’s own motion.  The court must provide an orde with the specific duties of the CFI.   The CFI can be a mental health professional, attorney, or other individual with appropriate training, qualifications and an independent perspective acceptable to the Court.  They are responsible for investigating, reporting and making recommendations as specifically directed by the cout in the order of appointment taking into several factors.  They make independent and informed recommendations in the form of a written report filed with the court.  The CFI shall consider the wishes of the child but need not adopt such wishes and will disclose the child’s wishes if expressed.  The CFI can be called as a witness, usually as an expert.  The court shall order costs and fees in favor of the CFI against the parties unless the party is indigent. 

PARENTAL RESPONSIBILITES EVALUATION –

• Upon motion of either party or upon the court’s own motion the court shall order a qualified health professional evaluation when there is a dispute as to parental responsibilities.  The moving party must deposit a reasonable sum with the court to pay the cost of the evaluation and it must not be for delay.  The evaluation is confidential.

PARENTING COORDINATOR

• Upon motion of either party or on the Court’s own motion or an agreement of the parties, after an entry of an order concerning parental responsibility the court can appoint a parenting coordinator to act as a neutral third party to assist in the resolution of disputes concerning parental responsibilities, including but not limited to implementation of the court-ordered parenting plan.  Absent agreement of the parties the court must make specific findings prior to ordering the parties. 

DECISION MAKER

• Consent of all parties is required and is comes up after an entry of an order concerning parenting responsibilities.  They are appointed by the court and granted binding authority to resolve disputes between the parties as to implementation or clarification of existing orders concerning the parties’ minor children.  All parties also have to agree on the decision maker. 

ARBITRATOR

• Consent from all parties is required and the awards must also be in writing.  Any party may apply to have award vacated, corrected, or modified by the arbitrator or move the court to modify the award.  Parties also have to agree on arbitrator.

SPECIAL MASTER

• A Special Master is a person appointed by the court to resolve one or more issues in a case and function like a judge and is required to hold hearings, take evidence and file a report along with a transcript of the hearing.  The findings  of fact are accepted as long as the court does not find them clearly erroneous.  They are used in jurisdictions with high case loads to help alleviate the heavy dockets. 

PARENTING PLAN

The Parenting Plan should address both parenting time and decision making responsibilities and the court can either approve a submitted plan or on its own motion shall formulate a parenting plan that addresses parenting time and decision-making responsibilities.  Parenting Plans should be tailored to the circumstances of each individual case and plan ahead for future, potential conflicts as well as the obvious.  Some considerations and necessary components are much more detailed than the court might be able to provide at a hearing if not brought to its attention first so it is important to be thorough and detailed with all plans submitted to the opposing party or court.  Some considerations might include:

• Primary residential parent preference
• School arrangements
• Religious practices
• Medical providers and practices
• Parenting time considerations such as holiday arrangements, vacations, transportation, exchanges,
• Extracurricular activity participation
• Right of first refusal
• Telephone contact when with co-parent’s care
• Make-up parenting
• General communication provisions
• Conflict of schedule arrangements
• Extended family involvement
• Any other potential or current conflict that is imaginable.

It is better dealt with now, rather than later.

DIVISION OF PROPERTY

• GENERAL Colorado’s property distribution laws separate property between Marital Property and Separate Property.  Marital property is all property not acquired by gift, bequest, devise, or descent.  Property acquired in exchange for what would otherwise be marital property, is not marital property.  It also does not include property acquired by a spouse after a decree of legal separation or property validly excluded by agreement of the parties.
• VALUE The next step is to obtain the value of the property.  Property will be valued as of the date of the decree or hearing.  If a party dissipates marital assets in contemplation of divorce, those assets must be valued as of the last date they existed as marital property.

DISTRUBUTION The final step is where the court is required to equitably distribute the property.  Equitable does not necessarily mean equal.  In dividing the property, the court is instructed to set apart to each spouse his or her respective separate property and make a division of marital property, as the court deems just, after considering all relevant factors, including but not limited to:

• The contribution of each spouse to the acquisition of the marital property, specifically mentioning a homemaker
• The value of the property set apart to each spouse
• Economic Circumstances of each spouse at the time of the division of property is to become effective, including the preference of awarding the familial home or right to live therein to the spouse with whom any children if any, reside the majority of the time and
• Any increases or decreases in the value of the separate property of the spouse during the marriage or the depletion of the separate property for marital purposes.
• No one particular enumerated factor is intended to have more weight than the others; in the final analysis, the court has wide judicial discretion in providing an equitable distribution of property upon dissolution.

MAINTENANCE

Maintenance is ordered by the court, if ever, after dividing the property in question.  The court will consider statutory standards to determine whether maintenance is necessary to provide for the reasonable needs of one of the parties.  In order for a court to order maintenance, it must find three circumstances exist:

• The moving party lacks sufficient property to provide for his or her reasonable needs.  (Property including both former marital and separate property).
• Is unable to support himself or herself through appropriate employment

OR

• Is the custodian of a child whose condition or circumstances make it appropriate that the moving party not be employed outside the home.

DEFINITIONS

• Reasonable Needs – Depends upon the particular facts and circumstances of the parties’ marriage.  May include consideration of the standard of living maintained during the marriage.  It is a necessary starting point for the trial court’s determination of a particular spouse’s reasonable needs or whether a spouse would be able to support himself or herself thorough appropriate employment.
• Appropriate Employment – Liberally construed to hinge on the economic circumstances and reasonable expectations established during the marriage.

FACTORS CONSIDERED BY THE COURT

• The moving party’s needs and financial resources
• The time necessary for the moving party to acquire sufficient education or training to enable him or her to find appropriate employment
• Dependent on type of employment during marriage and expectations as well as ability.  A desire for education is considered by the court.
•  Standard of living during the marriage – Does not require status quo nor bar it
• Length of marriage
• Age, physical and emotional condition of moving party
• Ability of spouse seeking maintenance to meet his or her own needs while meeting those of the spouse seeking maintenance – The salary of the non-moving spouse is relevant
• Tax Effect – Generally the spouse who pays can deduct the payment and the spouse who receives the payment reports it as income, the court can consider this when awarding or denying maintenance.
• Present Circumstances of the Parties

DURATION OF MAINTENANCE

• Continuing or for a Fixed Term, the court can order maintenance upon its discretion.  The court can also order incremental reductions or increases in the maintenance.

WAIVER OF MAINTENANCE

• Either or both parties may waive maintenance if the court finds that the waiving spouse has complete knowledge of the right to maintenance, and waiver is knowing and voluntary.  Waiver of maintenance is permanent, it cannot be raised in any court at any time in the future, no matter how the circumstances have changed.  Failure to request maintenance at permanent orders is deemed a waiver of maintenance.

TEMPORARY MAINTENANCE

• 75K Combined Income or Less: There is a rebuttable presumption of temporary spousal maintenance where the combined annual income of the parties is $75,000 or less.  It is calculated as follows: Forty percent of the higher0earning spouse’s monthly gross income minus fifty percent of the lower-earning spouse’s monthly gross income.  If the result of the calculation is zero or negative, the presumption is that temporary maintenance is not awarded.  Courts shall deviate from the formula if application would be inequitable or unjust.
• Greater than 75K Combined Income: In those cases whether the combined annual incomes of the parties are more than $75,000, the court may award temporary maintenance using the same factors above.

TERMINATION OF MAINTENANCE

• Maintenance is terminated by the remarriage of the party receiving maintenance.
• Death or injury of either party terminates maintenance.

CHILD SUPPORT

• Child Support is determined by a formula that is supposed to help obtain consistent orders across jurisdictions as well as keeping children receiving the same level of support from each parent as they have become accustomed.
• INCOME Gross income is used in the calculation on a monthly basis.  Bonuses, commissions, tips count as income.  In addition, if a significant benefit is received by a parent that reduces their personal living expenses it is also income.  Examples are a condo to live in from an employer or car to use on a daily basis and personally.  Self Employed individuals are attributed their gross receipts minus ordinary and necessary expenses required to produce such income, not their tax statement value necessarily.  There are many other types of accounts, winnings etc. that could count as income and has been a highly litigated area of the law.
• EXCLUSIONS FROM INCOME Government assistance programs, child support, second jobs, overtime and a significant other’s income are all excluded from the income calculation.

UNEMPLOYED OR UNDEREMPLOYED / POTENTIAL INCOME EARNING ABILITY Individuals are attributed their potential income or earning ability if they are unemployed or underemployed if they do not meet an exception.  The rule requires a 40 hour work week and the difference to be calculated if less is worked.  Some exceptions include:

•  A homemaker has a 30 month exclusion after dissolution
• They are terminated and are making efforts to obtain comparable work that is commensurate to their earning potential and resolve the issue that was the basis for the firing
• They are at a temporary job or have an educational plan reasonably intended to result in a higher income in the foreseeable future
• A good faith, reasonable career change

ADJUSTMENTS

• Parent’s obligations for adjustments is their percentage of combined gross income times the net cost.  Adjustments are available for Education or Care associated with the child, Health Insurance premiums and Extraordinary Medical Expenses.  There is also a provision for any other extraordinary adjustments which is commonly used for travel costs to obtain children for parenting time, activities etc.
• WORKSHEET A or B
• Separate worksheet per child
• Worksheet A (each parent does not have at least 93 overnights)
• Worksheet B (each parent has at least 93 overnights)

MEDIATION

• Mediators do not issue binding opinions, recommendations or rulings.  They listen to both sides of the case and make recommendations, trying to facilitate a resolution and settlement of the parties.  Attorneys can be present during the mediation and it is recommended that they are.  Mediation can be helpful if thought and care go into choosing the mediator, you are prepared and goals are set prior to the meeting.  Many courts require mediation and are allowed to by statute prior to any court hearing.  Mediation sessions are confidential.  Mediation can have advantages such as giving the opposing party a chance to have a third party recognize and point out the problems and issues with some of the positions he or she has taken for instance.
• SETTLEMENT
• PERMANENT ORDERS HEARING / TRIAL