By Natalie R. Mitchell
Attorney at Law
The Gasper Law Group, PLLC

Couple in love joking together on a bench with bikes on vacation

According to the Colorado Attorney General’s Website, the common-law elements of a valid marriage are that the couple

  1. is free to contract a valid ceremonial marriage, i.e., neither party is already married to someone else;
  2. holds themselves out as husband and wife;
  3. consents to the marriage;
  4. lives together; and
  5. has the reputation in the community as being married.

To form a common law marriage parties must cohabit as husband and wife and claim to be husband and wife. There is no length of cohabitation required for a couple to be considered common law married, however, living together is not enough to establish common law marriage. In order for a presumption of marriage to arise, the couple must do more than live together in the same house. The parties must intend to be married as shown by their reputation and conduct.

If one party believes that the parties are living as husband and wife but the other party does not and there is not other affirmative conduct as husband and wife, there cannot be a common law marriage. The parties essentially must act, perform and do everything as if they were married but without a valid Colorado ceremony. Further, a common law marriage cannot exist while one party is still married to a third party.

Factors the court may consider when determining if there is a common law marriage include:

  • Whether the couple hold themselves out as married to third parties, and have a reputation of being married,
  • Filing joint federal or state tax returns,
  • Listing the other party as a spouse on insurance forms or retirement plans,
  • Joint finances, joint bank accounts, or joint ownership of property,
  • The woman taking the man’s last name, and

–         If the couple went through any of the rituals of marriage, such as exchanging rings, or an informal ceremony

Once it’s been determined that a common-law marriage does exist, there is no difference between that marriage and a marriage with a marriage certificate and ceremony. The Colorado Supreme Court has ruled that discrimination against common-law marriages is unconstitutional. If you have a valid common-law marriage, you should be able to enjoy all the rights and responsibilities of marriage, including benefits, insurance, pension, and inheritance. Alternatively, if you have a valid common law marriage the only way the marriage ends is the death of a party to the marriage or through divorce.

Boy with young man on moving day carrying cardboard box

Yes, moving can be exciting, but how is it affected by Divorce?

By Christopher M. Nicolaysen
Staff Attorney
The Gasper Law Group, PLLC

In today’s transient society, parents that have been divorced in Colorado will often move out of this state and seek to take their child or children with them. The relocation of a party out of the State of Colorado can impact the amount of parenting time both parties will have with their minor child(ren). In Colorado, relocation of a minor child(ren) is controlled by statute and case law.

Pursuant to C.R.S. § 14-10-129, when the parent with whom the minor child resides the majority of the time seeks to relocate with the child to a residence that substantially changes the geographic ties between the child and the other party, the primary residential parent shall provide to the other parent with (1) written notice as soon as practicable of the intent to relocate, (2) the location of where the party intents to reside, (3) the reason for the relocation, and (4) a proposed revised parenting plan. Relocation hearings are given priority on the court’s docket.

Both the relocating parent and the non-relocating parent share equally the burden of demonstrating why it is in the child(ren)’s best interest to relocate or stay. In re the Marriage of Ciesluk, 113 P.3d 135 (2005). Further, the Court in Ciesluk stated, a court must begin its analysis with each parent on equal footing; a court may not presume either that a child is better off or disadvantaged by relocating with the majority parent.

The Court must consider all relevant factors, including the best interest of the child factors from C.R.S. § 14-10-124 and (1) the reasons why the party wishes to relocate with the child; (2) the reasons why the opposing party is objecting to the proposed relocation; (3) the history and quality of each party’s relationship with the child since any previous parenting time order; (4) the educational opportunities for the child at the existing location and at the proposed new location; (5) the presence or absence of extended family at the existing location and at the proposed new location; (6) any advantages of the child remaining with the primary caregiver; (7) the anticipated impact of the move on the child; (8) whether the court will be able to fashion a reasonable parenting time schedule if the change requested is permitted; and (9) any other relevant factors bearing on the best interests of the child.

Relocating with a child(ren) is not as easy as packing your bags and moving. Procedures must be followed and the relocation must be shown to be in the best interest of the minor child(ren). Relocation cases with a child(ren) are emotionally difficult because parenting time will change for both parents and child(ren) involved. If you have questions about relocating with a minor child or children, please contact The Gasper Law Group to schedule a free consultation with a Colorado Springs Family Law Attorney.

By Gretchen A. Bundy-Ladowicz Staff Attorney and Former JAG Attorney The Gasper Law Group, PLLC Military Divorce - Toy Soldiers Fighting - 07-15-15 There seems to be a great deal of confusion, misinformation, and basic ignorance on the topic of the divisibility of a military pension in a dissolution proceeding. The short answer is that, yes, a military pension is marital property that is subject to division in a divorce proceeding. That being said, as is the case so frequently in the law, things are never as simple as the short answer. The cornerstone statute addressing the division of military pension is the Uniformed Services Former Spouses’ Act (USFSPA). Before USFSPA, the United States Supreme Court had held in McCarty v. McCarty that the states were actually precluded from dividing military retired pay at divorce. The Court did not close the door completely on the issue. The Court went on to provide that Congress could change this through appropriate legislation. Thus, the USFSPA came to be and applies to disposable retired pay payable after June 25, 1981, the day of the McCarty decision, and to any court decree entered after that date. The Act provides that courts may, but are not required, to divide military retired pay incident to divorce. The Act leaves to the states to determine whether military retired pay is a marital asset subject to division or a separate asset that is solely the property of the servicemember. In Colorado, disposable military retired pay is subject to equitable division. As is the case with the division of anything in a court of general equity, equitable does not mean mathematical equality. However, the method for determining a spouse’s share actually is a math equation. In 1995, the Colorado Supreme Court in In re Marriage of Hunt established the use of the “time rule” formula for division of military pensions:

Months of overlap of marriage and active duty military service __________________________         X     .5     =           The fraction of the servicememeber’s military retirement that is awardable to spouse.

Months of total active duty Service

It is a common misconception that a spouse must be married to a servicemember for ten years to be able to receive any division of a military retirement. If there is only one month of overlap between the marriage and active duty service, that one month is put into the above calculation to determine the fraction of the disposable military retirement that is awardable to the spouse. The number would not be big, but a small amount of the retirement would go to the spouse. It may be that this 10-year confusion comes from a misunderstanding of the Defense Finance and Accounting Service’s 10/10 Rule. Under the 10/10 rule, for DFAS to enforce a division of retired pay, meaning an involuntary allotment being paid directly to the former spouse, a member and a former spouse must have been married to each other for 10 years or more during which the member performed at least 10 years of military service credible towards retirement eligibility time. The 10/10 rule DOES NOT establish that a marriage of less than 10 years of overlap between the marriage and years of credible service towards retirement precludes the division of said retirement. The disposable military retired pay is indeed subject to division by a Colorado court, just not subject to enforcement by DFAS.   One thing has been mentioned several times but has yet to be defined, and it’s definition is a big issue-what constitutes disposable military retirement! In our next installment, we will discuss that very topic.

By Christopher M. Nicolaysen
Attorney At Law
The Gasper Law Group, PLLC

The State of Colorado recognizes marriages in two ways. The first way is getting married in such a way that you meet all of the statutory requirements for marriage. The second way is by meeting the requirements for common law marriage. Thus, Colorado does recognize common law marriage.

Many myths exist as to what the requirements are to be common law married. One myth is that the parties must cohabitate for a certain number of years or certain amount of time. Under Colorado law, there is no set amount of years or time required to be declared common law married. Another myth is that a ceremony is required to be common law married. Parties can still be considered common law married in Colorado without a having a ceremony. Lastly, having children together does not necessarily make the parties common law married, but can be a factor in determining common law marriage.

Determining common law marriage is a fact based analysis, and no single fact determines the existence or lack of common law marriage on its own. In Colorado, the two elements needed to determine whether there was a mutual, present intent of the parties to be common law married are (1) cohabitation and (2) a marriage like relationship.

First, the Colorado Supreme Court has said that it is not sufficient that the parties simply be known in their neighborhood or community to be cohabiting. Instead, such cohabitation must be pursued with the habit and repute of marriage. With that said, cohabitation is more that just living together and dating.

Second, a marriage like relationship is more than just dating, having children together, taking vacations together, financially supporting each other, or have sexual relations. Each of these items can help support the showing of a marriage like relationship. A general reputation in the community, among friends, co-workers, and acquaintances, that the parties are intentionally holding themselves out as married is what is needed to show a marriage like relationship. Again, facts are needed to show either the existence or lack of a marriage like relationship.

Further, certain documents may help support the existence of a common law marriages such as the filing of joint tax returns, jointly titled deeds, insurance documents, and bank accounts held together. Understand that these documents are part of the factual analysis in determining common law marriage.

Although many myths and misconceptions exist about common law marriage, the Family Law Attorneys at The Gasper Law Group can help you determine whether or not a common law marriage exists in your particular situation. If you have questions about common law marriage, please contact The Gasper Law Group to schedule a free consultation with a Colorado Springs Family Law Attorney.

By Carrie E. Kelly
Managing Attorney, Domestic Relations Division
The Gasper Law Group, PLLC

When Colorado began allowing same sex couples to enter into a civil union, there was a general attempt to extend similar benefits and protections to same sex couples that extended to married couples, but there was a fairly significant and perhaps unanticipated gap: the right to get divorced.

The Colorado courts were allowed to issue a “Dissolution of Civil Union,” but not a “Dissolution of Marriage.” And for most intents and purposes this was enough, but for military members and their partners it created a significant problem. The military has taken the unfortunate position that people who are married must get un-married, and getting un-civil union is not the same thing. So if a same sex couple got married in a state allowing same sex marriages and then moved to Colorado, Colorado could only give them a Dissolution of Civil Union, not a divorce. As far as the military was concerned, this meant the unfortunate couple was still married.

In early October 2014, a number of cases challenging the constitutionality of Civil Unions as an alternative to same sex marriage made their way through the courts of appeals and ended with the United States Supreme Court. The Supreme Court declined to accept the cases for further review which practically means that the appeals court level decisions become the law of the land. Based on the rulings from the appeals courts, Colorado began issuing marriage licenses to same sex couples on October 7, 2014.

Although the right to be divorced was not addressed in any of the cases, it is the next logical conclusion that where the State of Colorado recognizes same sex marriages, the courts must be capable of dissolving those same marriages.

On October 29, 2014, the Gasper Law Group represented its first client to the successful resolution of a Dissolution of Marriage for a same sex couple who had been previously married in another state where neither was still eligible to file for divorce.

Whether or not you need a Dissolution of Marriage or Civil Union is a question that should be evaluated by a competent attorney. The Gasper Law Group would be pleased to meet with you to discuss the options available to you in your case.

By Jennifer L. Hochstein
Attorney At Law
The Gasper Law Group, PLLC

CHILD SUPPORT

The basic determination of child support is based upon a guideline which uses the parents’ combined adjusted gross income. The purpose of looking at the parents’ combined gross income is to determine how funds would have been allocated to the children if the parents and children were living in an intact household. In addition to looking at the parents’ gross income there are other considerations that can be included on the child support worksheet which ultimately affect the child support award.

The biggest factors affecting child support are the following:

Number of Children: The child support calculation is based on the number of children of the parents’ and what the parenting time schedule will be (see number of overnights below). Additionally, the worksheet also factors in whether or not the parents have children from other relationships and what type of support is either received or paid for those children.

Number of Overnights: If either parent has 93 or more overnights per year child support will be calculated using Worksheet B which will result in a lower child support amount. If either parent has 92 or less overnights per year Worksheet A will be used and child support amount will be a higher.

Child Care (work or school related): Child care costs can dramatically affect a child support calculation particularly when the children are young. Some parties choose not to include daycare costs on the worksheet but rather make agreements to split the cost of childcare. It would be beneficial to run the numbers in either scenario to see what is most cost effective for both parties. Another consideration to including child care costs on the worksheet is whether or not a child may no longer need daycare in the near future such as the child is transitioning into Kindergarten.  In that situation it may be beneficial to keep the daycare cost off the worksheet rather than attempt a modification of child support once that expense changes. Be aware that there are two categories of child care, work or school related (as in a parent is in school) that is because the federal tax credit applies only to work related child care expenses. That credit is applied to any work related child care expenses entered into the child support worksheet.

Health Insurance: Whichever parent provides health insurance for the children will receive credit for that expense on the worksheet. Be aware that ONLY the child’s portion of the insurance shall be included on the worksheet. For example if the monthly cost for a family of four is $200, and that covers two children, the children’s portion of the insurance would be $50 per child, or $100 total. There may be a situation where Mother is covering dental insurance and Father is covering medical insurance, each parent receives credit on the worksheet for the expenses paid for the child’s portion of the insurance.

Extraordinary Medical: This factor will only apply in fairly extreme circumstances where there is a recurring monthly extraordinary medical expense. For example if the child takes medication that costs $25 (out of pocket) EACH month, that expense should be included. Typically, extraordinary medical expenses will not be included on the worksheet as they do not occur each month and are difficult to predict when they will occur. However, if your child has a medical condition that incurs recurring monthly expenses those should be included.

Extraordinary Expenses: Just as in extraordinary medical expenses, general extraordinary expenses apply only in rare circumstances. For example if parents’ choose to send their children to private school this may be the appropriate category to include private school tuition. This may also apply for example, if your child is a world class gymnast and has recurring monthly expenses related to her sport. Including those fees may be appropriate in this category.

Spousal Maintenance: Spousal maintenance will be treated as income to the spouse receiving it and will be a deduction to the spouse paying it.

Determining child support is not as straightforward as it may seem by just “plugging” numbers into a worksheet. How to determine what constitutes gross income (and what is not included in gross income) is a whole other topic in itself. Here at The Gasper Law Group, PLLC your attorney can assist you in determining the amount of child support you may receive or the amount of child support you may owe. To play with the child support worksheets and get an idea of what it looks like and how the numbers work visit: http://www.courts.state.co.us/Forms/Forms_List.cfm?Form_Type_ID=94

By Brandon A. Prenger, Attorney
The Gasper Law Group, PLLC

One of the most commonly asked questions concerning a divorce is “how soon can I be divorced?”
Everyone has heard the horror stories of a divorce that drags out for years. Even so, most people expect it to be a matter of weeks after the papers are filed before they are free, single and ready to mingle. Who decides how long a divorce takes? Is there anything you can do to help speed the process up? What are the factors that govern how soon a divorce is over?

First and foremost, there is a statutory waiting period. If the parties agree on everything 10 minutes after filing for divorce, they still must wait 91 days to receive a decree of dissolution from the Court. This 91-day clock starts ticking from the time that the Petition is served on the non-filing party. So if you are planning on getting divorced, first you should plan on getting an attorney to guide you, and then you should plan on waiting at least 91 days.

Secondly, your divorce is dependent on the Court’s schedule. The Court is not very flexible when it comes to setting hearings. Some divisions, depending on their volume of cases, can set your case for its final hearing within a few months of filing your petition. Other divisions have at least a 6-7 month waiting period for you to get your day in court. So if you plan on getting divorced, hope that you are assigned to a fast division.

But wait, you ask, if I get a slow division, do I really have to wait 6-7 months to get officially divorced? Not at all. The third and final factor that governs your divorce’s time frame is you. If the parties can negotiate and come to an agreement on every issue of contention in the case, it is very likely that you can be divorced after approximately 91 days. All that your attorney will have to do is draft and file a Separation Agreement with the court along with an Affidavit of Non-Appearance. These documents will allow you to get a divorce in approximately 91 days without having to appear in court. If there are children involved, you might have to appear for an uncontested hearing, but these are very short hearings and can be set quickly. If, however, there are few or no agreements, then the court will have to decide the issues at a hearing, at which point you are at the mercy of the court in terms of scheduling. Ultimately, the length of a divorce boils down to how contentious the parties make the case.

By Jennifer L. Hochstein, Attorney
The Gasper Law Group, PLLC

What is the purpose of mediation?

During the process of a divorce proceeding or allocation of parental responsibilities parties are required to participate in mediation prior to attending a contested final orders hearing. Parties may also be required to mediate due to post decree issues, such as a modification of parenting time or if a contempt is filed. Some parties may agree at the time of their divorce that any future issues must be mediated first prior to either party filing a Motion with the Court. There are few exceptions to when parties will not be required to mediate, but these exceptions are rare. The court requires mediation as a way to assist parties in making their own agreements and to ultimately avoid contested hearings.
How do I schedule mediation?

The mediation process typically lasts two hours. Mediation can be scheduled with a private mediator which are often times family law attorneys in private practice or attorneys who previously practiced in family law. Mediation can also be scheduled through the Office of Dispute Resolution which is located in the basement of the courthouse. There are fees associated with mediation and those depend on the amount of time for the mediation and which mediator is selected. Mediators are to act as a neutral third party and do not represent the interests of either party.

What should I do to prepare?

The best way to prepare for mediation is to review your sworn financial statement and prepare a proposed parenting plan, if applicable. Reviewing your sworn financial statement will allow you to recognize which assets and debts will need to be discussed during mediation. A proposed parenting plan will be helpful for the mediator to review to understand what you are requesting in terms of parenting time. The mediator can assist you in determining child support by reviewing the child support guideline with you. Lastly, go into mediation with an open mind and the understanding that to reach an agreement both parties will need to compromise.

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By Amanda C. Musselwhite, Attorney
The Gasper Law Group, PLLC

You had the perfect wedding with the perfect rings! You were busy planning your house in the suburbs with your 2.5 kids, your cat, and your dog. Suddenly, you realized your prince was really a frog or your princess was really an ogre! You discovered things so unexpected about your new spouse that you would not have married them had you known prior to tying the knot. Is there a way to get unmarried?

In Colorado, you can file a petition for invalidity of marriage to undo your vows of matrimony. However, there are only a few grounds on which that petition can be granted. One of the less utilized reasons for requesting a petition for invalidity is based upon fraud. Under C.R.S. 14-10-111(1)(d), a petition for invalidity may be granted when “[o]ne party entered into the marriage in reliance upon a fraudulent act or representation of the other party, which fraudulent act or representation goes to the essence of the marriage.”
The requesting party will have to show that their spouse acted fraudulently and the requesting party relied upon that fraud when they were married. Further, that fraud will have to be something that goes to the essence of the marriage. The fraud cannot be something minor or peripheral, it must be something that had the requesting party known, they would not have consented to the marriage.

Whether fraud exists that goes to the essence of the marriage is a fact based question that is determined on a case by case basis. The judge will evaluate the evidence that the party acted fraudulently, as well as all of the other evidence surrounding the parties’ reasons for marrying and how important the fraudulent act was to the aggrieved party.

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By Carrie E. Kelly, Managing Attorney
The Gasper Law Group, PLLC

Parental%20Kidnapping%20-%2005-23-14.jpg

Although child abduction is not a common occurrence under any circumstances, the most common kind of child abduction is parental kidnapping. Parental kidnapping is when a child is taken by a parent in violation of an existing custody order. If there are no court orders in place and there are no court cases such as divorce, allocation of parental responsibilities or paternity pending, it is not kidnapping to remove a child from the state. Where there is an order setting forth custody or parenting time and the children are removed in violation of that order, there are remedies available to help safely return the children.

The most common parental kidnapping scenario involves a custody order from one state while the children are present in another state. In general, law enforcement officers will only step in to enforce an order that is issued by their state. So if the children are in the state of Colorado, Colorado law enforcement needs a Colorado court order in order to act. The fastest way to obtain a Colorado court order when you have an out of state custody order is to file the custody order with Colorado in a process called domesticating the foreign order. This process requires a certified copy of your custody order which you can then file in Colorado with the appropriate motion. Once the custody order is filed with Colorado, the Colorado courts can then direct Colorado law enforcement to take the children and return them to the other parent.

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