Colorado Springs Divorce Attorney Blog

By Teresa A. Drexler, Partner
The Gasper Law Group, PLLC

Parties in a divorce tend to be very defensive about financial issues. A common statement made at the beginning of the divorce is “I made the money and supported this family so why should the other party benefit financially from my hard work?” The years of hard work, however, were during a marriage where it is likely the other party contributed either financially with their own income into the marriage or by their contributions to maintaining the household. The typical example is the corporately employed husband and stay-at-home mom. The husband does not understand why his wife of fifteen years would be entitled to any support by him after a divorce [see "Colorado Alimony Blog" on this site]. After all, he has worked the long hours to get where he is on the corporate ladder. He has contributed to “HIS” retirement fund with “HIS” income each month. The mother believes she is entitled to something for all the years she gave up her career opportunities to stay at home and run the household. The wife believes she should share in a portion of her husband’s income and retirement funds and she is correct under Colorado law.

Another common misconception deals with the grand old yearly tax return. When one party works and a tax return is received, that party typically thinks they are entitled to keep the entire return without sharing it with their spouse if their spouse was not employed outside the home. The statement “It’s “MY” money” is extremely common. Newsflash…it is marital property and you should plan to share the tax return in an equitable manner. The court does not care that only one party actually earned the income. The court assumes that both parties contributed to the marriage in different ways. If not for the stay-at-home mother it is likely the husband could not have achieved such a successful career. (And the roles are sometimes reversed with the husband being the homemaker.)

These are just a couple examples of the typical financial mindset people have coming into a divorce. The division of financial assets and debts that accumulate during a marriage can be a confusing and frustrating issue to deal with during a divorce. Everything related to finances that accumulates during the marriage is marital property and is subject to equitable division either by agreement or through the court. There are exceptions to this rule as there are a few ways in which to accrue separate property during a marriage. If one of the parties receives a gift or inheritance, for example, that may be that parties exclusive separate property that is not subject to division. Outside of a few exceptions, everything else is fair game. Spousal maintenance, division of tax returns, division of retirement accounts, etc., tend to be high conflict areas when it comes to the financial division of property. The best thing you can do for yourself is understand from the beginning that the court can and will divide these equitably. Of course what one person believes is equitable is different from the next. Pursuant to Colorado statute, a division must be made that is equitable, not equal. However, the reality of the situation is that more often than not, equitable does result in close to an equal division.

Continue reading "‘IT’S MINE!”" »

By John H. Bolen
Staff Attorney
The Gasper Law Group

You probably won’t be surprised to learn that family courts have a number of drawbacks – from high costs to overburdened judges – which demonstrate why they are generally the wrong place to resolve a domestic relations issue. In addition to being outrageously expensive, the legal system heightens negative emotions, and purposefully poses one “side” against the other.
In most cases involving children, for example, the best thing that can probably happen is for parents to be on the same ‘team,’ and not think of themselves as being on opposite “sides.” Unfortunately, this is also one of the most difficult concepts to get a parent fighting over children to accept, and part of the reason why is because of the system itself.

If your highest priority is to make the other person miserable, a 'tough guy’ approach may be best for you. But you’d need to be prepared to spend literally tens of thousands of dollars in the fight, with no guarantee of coming out ahead of the other person. It is very common for parties to a domestic case to rack up legal fees that are many, many times the dollar amount of an issue at stake. Allowing this type of thing to happen may fill the coffers of the lawyers, and can satisfy damaged egos. In the long run, though, it doesn’t benefit you or anyone else who truly matters. Beware of those who seek to profit from making sure your problems only get bigger.

You deserve to hear an honest legal assessment about your chances in Court and the Gasper Law Group will ensure you are fully apprised. It’s safe to assume you would hire an attorney for professional advice, and your attorney will presume that you actually listen to the advice you are paying to hear. If you’re better off going to Court, we will let you know. If you are better off settling, you need to understand that too. Your attorney should want you to know exactly what to expect in Court rather than spend the rest of the attorney-client relationship explaining why he or she couldn't deliver on promises that really shouldn’t have been made in the first place.

The following are expenses you can expect to incur when you have to go to court:
• Your attorney fees and possibly a portion of the other party’s attorney’s fees
• All fees associated with filing court documents
• Fees for any experts that are necessary
• Fees for depositions should the need arise
• Fees related to any expenses incurred during the discovery phase of the case
• Loss of income for time taken off work
• Any travel expenses should you have to travel long distance

Continue reading "The Power of Negotiated Agreement" »

By Matthew B. Drexler
Partner and Attorney
The Gasper Law Group

Colorado recognizes the rights of parents, grandparents and even psychological parents in child custody disputes. It is easy to imagine a scenario where a young couple, once madly in love, is now squaring off in court about who should get more time with the child or who should be allowed to move with the child out of state. However, the young couple could not have imagined all those who would appear in court demanding parenting time (also known as visitation).

It takes a village to raise a child, right? The more the merrier? The problem is deciding first who is entitled to legally claim parenting time and second how much time should be awarded to those entitled? However, there is a much more delicate issue to resolve first: Who will represent who in the child custody case?

It is all too common that a parent schedules an initial consultation with an attorney to discuss her child custody case and explore her options. When the mother arrives at the attorney’s office, she is accompanied by her loving parents (i.e. the maternal grandparents) and a close family friend who has been caring for the child for the last six months while the mother and father desperately tried to mend their personal relationship. An attorney unfamiliar with ethical considerations or an attorney far too motivated to grab three separate retainers may jump for joy. After all, don’t all three parties have a similar interest in cutting dad out of the picture?

Continue reading "ALL IN THE FAMILY – A CONFLICT OF INTERESTS" »

By Carrie E. Kelly
Staff Attorney
The Gasper Law Group

When you hear the phrase “parental alienation,” you probably think of one parent refusing to allow the other parent to see the child, denying phone contact or telling the child negative things about the other parent. In reality, parental alienation can be much more subtle. Oftentimes parents unwittingly alienate their children from the other parent with the best of intentions. The purpose of this blog is to help you think like the courts so that you can avoid both putting your children in a hard spot and getting on the wrong side of the judge.

Example 1. Mother has refused to allow Father any contact with the children leading up to the Temporary Orders Hearing where Father finally is awarded some much overdue parenting time. Father is desperately worried that the children will think he has abandoned them because it’s been more than two months since he’s been allowed to see them.

What Father wants to say to the children: It wasn’t my fault that I haven’t gotten to see you.

What the court hears: It wasn’t my fault…it was Mother’s.

What Father should say instead: I’ve missed you so much and I’m so glad to see you. We’re going to have a great weekend.

We understand the desire to make sure your children know that you didn’t choose not to see them, but children are very black and white thinkers. If you introduce fault into the equation, they understand that someone is at fault. And if it’s not you, there’s only one other person to blame. It’s important that you understand that painting yourself as the “good guy” naturally implies that the other parent is the “bad guy.”

Example 2. Until the separation, Mother has never really been apart from the children. This is the first time in their lives that she doesn’t know what they’re doing during the day and she’s both curious and a little worried. When the children return from Father’s house, she wants to know what they did.

Continue reading "The Road to Parental Alienation is Paved with Good Intentions" »

By Jennifer L. Helland
Attorney at Law
The Gasper Law Group

Facebook, Twitter, and MySpace. We have all heard about them and they are frequently mentioned in the news. Recently, there was a block buster movie about Facebook, a court case about the freedom of speech and postings on social media, and stories about criminals caught because of their postings on these sites. Everywhere you turn, technology and social media seem to be there.

As an attorney, where is a fantastic place to get dirt clients and the other side? Social Media.
It is amazing what people post on social media, relatively unfiltered. Sure there is a first amendment right to the freedom of speech but that does not mean that your words can not be used to question your motives, credibility, or judgment in a custody case. As an attorney, I have used postings against the other side but it has been used as a weapon against my clients as well. If someone insists on keeping their page up during the course of a case, consider the following list Dos and Don’ts:

Do
• Say Happy Birthday to your friends
• Keep you settings private for your friends only; including pictures
• Post how great the weather is
• Post your favorite bible verse, so long as you are not male and your favorite verse is “wives submit to your husband”
• Discuss the latest sports score
• Post photos of sports events and school events (provided there is not a restraining order restraining you from these locations)
• Post photos of you playing sports or being in someone’s wedding
• Charitable events you plan to attend

Don’t Post:
• How much you hate the your spouse, the other gender, or how you got screwed
• Pictures of yourself half dressed holding your favorite glass of Long Island Ice Tea or looking in the mirror making your best sexy face
• Pictures of yourself and your new significant other with your children as a “family portrait”
• Pictures of your children nude, in the bath, holding a beer, flashing gang signs, or any type of weapon
• How someone has kidnapped your child
• How depressed and down and out you are
• How your kid is home from school again
• How you cannot handle your kid’s behavior, attitude, or how much you want to take the wooden spoon and smack them on the rear with it
• How great the bar, club, or Hookah Lounge was last night
• How drunk or high you have gotten
• How the Judge or Court has screwed you again
• How you are broke because that money sucking ex of yours got your money and is wasting it on cable and not your child
• Asking for parenting advice from a bunch of relative strangers
• How your 2 year old was being sassy and you threatened to sell him on Craigslist or any other choice in disciplining methods
• Have your significant other post on their page trashing your ex, her family or children
• Do not link any of the above to your page

Continue reading "Social Media, the First Amendment and your Family Law Case" »

By John H. Bolen
Staff Attorney
The Gasper Law Group

What is considered ‘martial debt’ in Colorado?

Generally, all debt that a party incurs before the marriage is considered separate debt,
and all debt incurred after the marriage is considered marital debt. However, there are
many exceptions - for example, usually student loans accumulated during the marriage will
continue to be the sole responsibility of the individual who obtained the education, but not always.

How does the Court divide marital debt if we don’t agree?

As for marital debt, the court will divide it up on an ‘equitable’ basis – that is, what is fair
under the circumstances, and not necessarily equally. This may mean a 50/50 distribution, or often, in some other proportion. Much of the determination of how much each party must pay revolves around what specifically the debt was incurred for, who incurred the debt, and who it
benefitted the most. Generally, if a party is awarded an asset, that party is responsible
for the debt that goes with it.

It is all Marital Debt until the Divorce Decree?

Colorado is different from most states in terms of how debts are treated after the divorce
action is filed. Most states provide that marital debt does not accumulate after the
divorce has been filed. Colorado, however, provides that all debt accumulated until the
Decree of Dissolution enters (which typically happens at the end of the case) is still
marital debt, even if the parties have physically separated. Additionally, because
Colorado is a no-fault divorce state, the Court will not allocate debt based on marital
misconduct of either of the parties. However, economic fault may be considered in
dividing up debt. For example, if while the divorce is pending, one of the parties has run
up credit card bills without the permission of the other party, the court could potentially allocate 100% of that debt to the party that incurred the debt. However, if the case is not clear cut, the
court can still decline such treatment and order that each party is responsible for half of
the debt (this may be the case if the debt was used for reasonable family support &
children’s’ expenses).

Continue reading "Marital Debt in Colorado" »

By: Tanya L. Lopez
Paralegal
The Gasper Law Group

In many divorce cases, children are unintentionally caught in the middle. When you come to your attorney’s office it is often best to find child care, or schedule your appointment at a time when the kids are in school so that you are not exposing the children to the facts of your case. Children always seem to listen in on conversations when we least expect it. When you meet with your attorney, everything that is said is confidential and is never repeated without the client’s authorization. The last thing you want is for your child to go back to your ex-spouse and innocently begin to talk about the conversation you had with your attorney.
Many standard Domestic Relations Court Orders regarding parenting time will state that neither parent shall discuss any aspect of their case with the children. This can create confusion and possibly drive a wedge in the children’s relationship with the other parent. So always be sure to think ahead and prepare for child care before your appointment with your attorney. Preparing for outside child care is always a whole lot cheaper than having to pay your attorney or paralegal rate for one of them to look after your children during your meeting.

By Rebekah L. Gostnell
Paralegal
The Gasper Law Group

Parents are expected to provide financial support for their children. Generally, the parent without primary parental responsibilities is the parent ordered to pay child support. There are Child Support Guidelines that are followed in determining how much child support should be paid per month by each parent. These guidelines are based on the combined income of each parent and the number of overnights spent with each parent.

Child Support must be paid. There are several circumstances that apply when paying child support while in prison:
• child support that was ordered prior to a prison sentence;
• child support that is requested while in prison;
• public assistance that is being paid to child(ren) while in prison (an inmate may be required to pay this public assistance back while in prison).

A monthly child support obligation that was ordered prior to a prison sentence does not change. It is the responsibility of the inmate to request a modification of the child support obligation, although this request is not guaranteed. Any modification will affect any future child support obligation, not a past child support obligation. This request for modification could take several months before a new child support order is entered.

An inmate is still responsible for paying the monthly child support obligation. If the inmate is behind on the child support payments prior to the prison sentence or becomes behind on the child support payments during the prison sentence, that inmate is still responsible for making those payments. It is important that a payment plan be made prior to the release from prison. If those child support payments are not made, the state can suspend the inmates’ driver’s license or any other state license and garnish a percentage of the inmates wages. The inmate could also be held in contempt of court and ordered to serve time in jail.

It is always important to keep some form of record of child support payments that have been made, whether in prison or not. It is best to make child support payments by check or money order, so that you are guaranteed that record of payment.

If an inmate has a prison account, the Department of Corrections is required to take a percentage of any and all money deposited into this account to make child support payments (C.R.S. 16-18.5-106). The Colorado Child Support Enforcement agency is allowed to file a Notice of Administrative Lien with the Department of Corrections in order to take money from an inmates prison account (C.R.S. 26-13-122.5).

IN VERY RARE AND UNUSAL CIRCUMSTANCES WILL A JUDGE WAIVE A CHILD SUPPORT ORDER ENTERED PRIOR TO A PRISON SENTENCE!!!!

By Nan R. Scranton
Attorney at Law

If you decide to leave your spouse and your home, the old adage “You can’t go home again” may apply to you – literally. The law of burglary is designed to protect the dweller, and hence, the controlling question is occupancy rather than ownership. People v. Johnson, 906 P.2d 122 (Colo.1995).

C.R.S. 2011 Section 18-4-202(1), states:
A person commits first degree burglary if the person knowingly enters unlawfully, or remains unlawfully after a lawful or unlawful entry, in a building or occupied structure with intent to commit therein a crime ... against another person or property, and if in effecting entry or while in the building or occupied structure or in immediate flight therefrom, the person ... assaults or menaces any person....

Under section 18-4-203(1), “[a] person commits second degree burglary, if the person knowingly breaks an entrance into, enters unlawfully in, or remains unlawfully after a lawful or unlawful entry in a building or occupied structure with intent to commit therein a crime against another person or property.”

In determining whether the crime of burglary has been committed, the focus is upon the possessory rights of the parties and not the ownership rights based on legal title. Howard v. People, 62 Colo. 131, 160 P. 1060 (1916). In Sloan v. People, 65 Colo. 456, 176 P. 481 (1918), the court held that any rightful possession of a premises creates a sufficient “ownership” or possessory interest in the property such that an unlawful entry constitutes a burglary committed against the person with that interest.

So, could you, as an estranged spouse who left his/her home, if you decide to return to that home be charged with burglary, or does your marital relationship preclude such a charge? Maybe. It depends on the status of your “possessory interest”, whether you are still privileged or licensed to enter the residence. The mere existence of a marital relationship does not preclude a burglary conviction.

What factors might a court consider when determining whether an estranged spouse still has a right to enter a one-time marital residence? The most obvious one that comes to mind is the marital status of the parties, the existence of any legal order against the estranged spouse, extended periods of separation, the names on leases or documents of title, the acknowledgment by the estranged spouse that he or she had no right to enter the premises, the method of entry, what measures had been taken to exclude the estranged spouse from the residence, and whether the estranged spouse understood that his/her possessory interest had been relinquished.

Where a restraining order exists that prohibits you from reentering the marital home and or restricts you from the marital property, your unauthorized reentry during the period of court ordered exclusion could subject you to a burglary charge. Where you and your spouse have separated, are living apart and you have communicated that to each other, one spouse does not have the right to enter the residence of the other where that residence is previously shared marital property, even where a property settlement has not been reached.

What if one spouse has leased a residence after a separation? The other spouse is not privileged or licensed to enter that residence simply because there is still a marital relationship. If the other spouse has no possessory interest in the leased residence, unauthorized entry may result in a charge for burglary.

By Teresa A. Drexler
Managing Partner
The Gasper Law Group

Divorce matters can be complex both financially and with respect to parenting issues. There are many options for retaining experts to help sort through the complexities of a case, however, experts can be costly. Therefore, it is important to consider all the facts of your case and analyze whether an expert really can benefit your case or if you will expend a great sum of money to get very little in return. The attorneys at The Gasper Law Group are well equipped to help you through this type of analysis.

The easiest way to utilize experts in a divorce case is to have the parties agree to a neutral expert. A neutral expert agreed upon by the parties may carry greater weight with the court. Typically if the parties agree on a neutral expert the costs of that expert are split and in the end you have a neutral evaluator to write a report – either financial or regarding parenting issues – and present that report to the court. Courts are more inclined to adopt the recommendations of a neutral expert due to the fact that the parties agreed on that expert. Because of this, cases tend to settle in mediation, saving the parties money, because the parties know the court is more likely to adopt the neutral expert report.

Continue reading "The Use of Experts In Divorce Cases" »

By Laura A. Good, Senior Domestic Relations Paralegal
The Gasper Law Group

You’ve had your day in Court, the Judge made his ruling and now … where’s my order?
Even though the Court has made its verbal ruling, a written order is not immediate in most cases. Most of the time, written orders can takes weeks to receive from the Court. Many times the attorney must order a transcript of the Court’s ruling, which generally takes 10 days when ordered on an expedited basis. Once the transcript is received, a Motion to Adopt Transcript as Order of the Court, along with a proposed order, is submitted to the Judge for entry. Once the Judge receives the Proposed Order, your attorney has no control over how quickly the Judge reviews and signs the Order, no matter how much begging or pleading you do.

If a transcript is not ordered, generally the Court requests one of the attorneys to prepare what is called a “long order.” Once the order is drafted it is sent to opposing counsel for their review and approval. This process can unfortunately can go back and forth for days or some times weeks to “fine tune” the order and agree on the exact verbiage of the Court’s ruling. Once the proposed order is approved by both attorneys, it is submitted to the Judge for review and entry.

Continue reading "Why Is My Written Order Taking So Long?" »

By
Carrie E. Kelly, Attorney
The Gasper Law Group

What happens to your income taxes both during and after a divorce is a common point of confusion. This article is not intended to provide you with specific tax advice; we are lawyers, not accountants. The purpose of this article is to describe how income taxes are treated by the family courts so that you may then arm yourself with that information when you have your taxes prepared or prepare them yourself.

It’s my money and I need it now!

A tax refund from any year you were married is considered to be a marital asset subject to division by the courts. Frequently this time of year, we see one party or the other file Married Separate and spend what they consider to be “their” refund. This is a potentially very risky move on your part. It is quite common for courts to require the parties to file an amended return in order to result in a larger refund. The party who files on their own risks having to repay funds to the marriage that have long since been spent and possibly to pay the costs associated with amending a return or other penalties.

As a general rule, it is rarely a good idea to act unilaterally when it comes to a joint marital asset. If you feel you have specific circumstances, such as a spouse who is delinquent in their taxes, bring the matter to your attorney’s attention for further advice.

The kids live with me, why does my ex get to claim them?

Colorado courts divide the dependency exemptions based upon financial support, not based on where the children primarily reside. So long as a party is paying child support, they are providing financial support and are therefore entitled to their share of the dependency exemptions. What exactly a parent’s “share” of the exemptions equals is a question for the court to determine.

Continue reading "Who Gets Custody of the Tax Return?" »