Colorado Springs Divorce Attorney Blog

Gasper Law Group
Domestic Relations Division

Here is the scenario: Kate is a single mother of two children ages 2 and 4. The biological father left just after the second child was born and has never been a part of the children’s lives. Kate meets Brian. Brian, being an upstanding guy who has no problems dating a woman with two children, soon marries and moves in with Kate. For two years the couple functions as a family. Kate stays home with the kids and Brian goes to work to financially support the family. Brian comes home at night and helps the children with homework, the family eats dinner together, and the bedtime routine exists of story time and saying prayers. The family attends church on Sundays. Then all of the sudden things go bad and Kate decides to split with the kids. Brian is emotionally attached to the children and wants parenting time. He also believes the kids want to spend time with him. Kate’s response is that Brian is not a biological parent and therefore has no rights with respect to the children. As it turns out, however, Kate is wrong.

In Colorado courts recognize the right of a non-biological parent under the “psychological parent” doctrine. A psychological parent is a person other than a biological parent that has a psychological attachment with a child. Typically the party asserting psychological parenting rights has been a major part of the child’s day-to-day life and making decisions for the child as a biological parent would. The courts recognize that a psychological parent’s bond with a child can often be as strong as the bond between a biological parent and the child. If a court determines a psychological bond exists, the court may award parenting time and parenting rights to the psychological parent. Brian has a good case to assert his rights as a biological parent.

Continue reading "Divorce - The "Psychological Parent"" »

>By THE GASPER LAW GROUP

If you have read one of my other blogs, “A Package Deal,” you would know that many divorce cases come with several cases wrapped into one – domestic violence case, restraining order and then the divorce action. This article focuses on Restraining Orders.

I normally advised clients to obtain a restraining order when they are concerned about harassment or threats of violence from their spouse. The restraining order can include the children of the marriage or anyone in the household that requires protection. Once you get the Temporary Restraining Order and have the spouse served, then the matter will be set for hearing. It is at this stage that I advise clients of the three options available.

The first option is to proceed forward with the restraining order hearing. There is no guarantee the restraining order would become permanent and this option is the only option where result are uncertain. Depending on the facts of the case, some clients have a better chance than others.

Option two is to continue the temporary restraining order and “wrap” it into the divorce proceeding. The restraining order hearing is continued for roughly ninety (90) days and not addressed by the court. Rather, the parties proceed with the divorce hearings and attempt to resolve the restraining order during the divorce proceeding. This sometimes results in the party seeking protection ultimately dismissing the restraining order. The other option may be that the party seeking protection has never been able to set aside their fears and the restraining order hearing proceeds as scheduled.

The final option is the crux of this blog – the No Contact Agreement. People assume the No Contact Agreement has no protections and is just a promise of the other party to not contact them. But the No Contact Agreement is much more than this. The penalties for violation are more severe than those for violation of a permanent restraining order. The penalties for violation of a no contact agreement include up to six months in jail.

So how does it work? The no contact agreement is a contract between the parties that is filed with the Court. The contract is usually filed in the “DR” case, as we like to call it, or family case to the lay person. If there is no “DR” case, then the document is filed in the restraining order case or criminal case, if one has been opened. The document is a binding contract that all parties must adhere to. Once the No Contact Agreement is approved by the Court, the restraining order is dismissed in its entirety.

The contract is usually reciprocal, although I have made it one-sided on occasion. Regardless of whether the document is reciprocal or one-sided, the agreement continues to “restrain” one or both parties from having any contact with each other. This include telephone contact, email, text messages and even Facebook or MySpace. The agreement will also include a prohibition from either party coming within 100 yards of each other, their home, school and place of employment or places frequented by the party (i.e. church, playgrounds where the children may play, etc…). Because it is a contract drafted by the attorneys and entered into between the parties, it can contain any provisions the parties desire so long as the provisions are not unconscionable (i.e. prohibition on the right to sue).

Just as with the restraining order, if a restrained party happens to run into the other party at, say, the grocery store, then the party last there or who recognizes the other party first, must leave the premises immediately. For example, say Jane and John have reciprocal No Contact Agreements. Jane is out having dinner at a restaurant, seated and having already ordered her meal, when John walks in the door. As soon as John recognizes that Jane is present, he must immediately lave the restaurant and have his dinner elsewhere.

So far, you can see that the No Contact Agreement is just like the Restraining Order. So how do the two differ? The two differ when it comes to penalties and enforcement.

If you had a restraining order and the restrained party came within 100 yards of you or telephoned you, you could dial 911 and have the restrained party arrested and/or cited for violation of a protection order. The report of the violation does not necessarily mean that the other party would be arrested. It depends on the circumstances. Even with an arrest, the restrained party would spend no more than a couple of days in jail waiting on bail (I say a couple because if the violation occurred on Friday evening, he may not be able to get in front of a judge until Monday morning, or Tuesday morning depending on holidays). The bail amount would be minimal almost guaranteeing a release. Regardless of whether the restrained party is arrested, the restrained party would certainly receive a summons for violation of a protection order and given a court date.

The above scenario would not happen with a No Contact Agreement. If the restrained party violated the no contact agreement, you could not call the police for assistance. You could call the police only if a criminal law were violated. But if the restrained party came within 100 yards of your residence, or telephoned you directly, calling the police would provide no assistance. They would be unable to do anything, unless of course the restrained party violated a criminal statute. This is the only drawback of the no contact agreement.

Continue reading "Restraining Order vs. No Contact Order" »

By THE GASPER LAW GROUP

When I was asked by our Office Manager to do a blog about what is considered a “win” in a family law case, I had to chuckle to myself. You see, just a couple of hours earlier, I was engaged in a long conversation with one of the Judges next door about that exact topic. The judge and I were discussing what would constitute a “win.” She and I both concurred that, in a divorce case, there are no winners. If anything, everyone loses.

Don’t get me wrong, a divorce case is the most traumatic and emotional situation anyone can find themselves. This is even more pronounced when children are involved. In most cases, you have two people who, at some point in time, fell in love with each other and committed themselves to a union. Children are later brought into this union. Then something goes wrong. Now you have two people, formerly in love with each other, who now hate each other more than they could have imagined. Clients will deny that they hate their former spouse, but the truth is, when someone you loved and trusted broke your heart or destroyed your trust, it’s hard to not have intense hatred towards that person. This emotion often clouds their judgment and rational thought, making every issue in a divorce case a contentious battle.

I see this all the time. Clients who dig their heels in and fight over the most ridiculous things – the bedroom set, statuettes, TV’s, photographs, you name it. The thing is, the client’s get so bogged down into fighting with their spouse over these mundane items that they lose sight of the true prize – the children.

The judge gave a great analogy to a divorce – it is like the dissolution of a partnership. You have two people who entered into a contract. They have purchased items together and brought in “employees” (i.e. children). A dispute arises and the partnership must dissolve. Not only does the partnership have to pay off its debts and liquidate its assets, it has to ensure their employees are taken care of. This is exactly what occurs during a divorce.

Continue reading "Defining a WIN in Divorce - "It's the Kids, Stupid!"" »

By THE GASPER LAW GROUP

I have had clients come in and ask whether it is better for them to file a Petition for Dissolution first. Client frequently believe that it is important to be the first to file. When asked what position is better, I always answer, “It depends.”

If a party is having an extra-marital affair, is it better to file first and go on the offense to dispute the claim? If one party feels they can no longer reside with the other party, but want to continue to be a major part of their children lives, should they file first and leave the residence? If they leave the residence, would the other party claim desertion or abandonment?

First, Colorado is a no fault state. Whether a party has “cheated” on the other during the marriage is completely irrelevant. Courts do consider extra-marital affairs if one party has used marital funds in furtherance of the affair, i.e. buying hotel rooms, expensive dinners, fine clothes, spa treatments, etc.. If a party has used marital funds in furtherance of the affair, the other party may seek reimbursement of those funds as part of the dissolution decree. This may be beneficial in offsetting any maintenance that might be owed.

As for abandonment or desertion issues, the only time the courts consider such issues occurs when one party completely abandons their family, which constitutes failure to provide financial support or a home for the abandoned family. Otherwise, the courts do not consider abandonment just because a party has vacated the marital home due to marital discord.

Continue reading "Filing for Divorce - "Race To The Finish"" »

By Teresa A. Drexler
Attorney At Law
The Gasper Law Group

Military deployment or other active duty requirements with the military brings many different challenges. Not only is there the anxiety of leaving friends and family behind but inevitably there are questions and concerns with how your personal affairs will be dealt with in your absence. Many legal issues could arise before or during your deployment. Take John and Katie for example. John and Katie have been married for 5 years and have a child, John Jr. Katie received her active duty orders last month and is now overseas. John now decides he wants a divorce and proceeds to file divorce papers and requests custody of John Jr. What does Katie do?

Whether you are on Federal active duty in the Army, Navy, Air Force, Marine Corps, Coast Guard, or other federal agency, the Soldiers’ and Sailors’ Civil Relief Act of 1940 (SSCRA) helps protects you from certain civil judgments and liabilities like the example above during your period of active duty. The Act also provides limited protection for dependents of those serving in the military.

The SSCRA takes effect the moment you receive active duty orders. It protects you from high interest rates, default judgments, and other legal rights while on active duty – like a spouse filing for divorce and obtaining custody of a child while you are unaware of any proceedings taking place. Among other things, the SSCRA requires creditors to cap interest rates, tolls time limitations on when you can bring legal action against another, and protects you from eviction and repossession of personal property. The Act can also protect your family and dependents from being evicted from your residence during your active duty period. You should be prepared to show your orders to potential creditors, landlords or other persons who may need proof of your orders before changing any interest rates, payment plans or cancelling a lease.

Now back to John and Katie. Fortunately for Katie, the SSCRA, along with a good attorney, could save the day. John cannot circumvent the legal process simply because Katie is on military leave and unable to respond to any request for divorce or attend related court proceedings. In any case like this, John must first serve Katie with notice of the divorce and request for custody. John could have Katie served while on active duty but this is often difficult to accomplish. Until John serves Katie with the divorce papers, John cannot do anything in this case.

Continue reading "Military Divorce - Protect Your Rights While Deployed" »

By Teresa A. Drexler
Attorney at Law
The Gasper Law Group

Separation and divorce is complicated when children are involved. Emotions run high and often the parties are angry and bitter with one another. It is often difficult to separate frustration with a spouse as a result of divorce and the exhaustion from suddenly becoming a one parent household. Attorney’s can help you get through the legal process resulting in a final divorce. If children are involved, an attorney can aid in preparing appropriate parenting plans and agreements that address issues with the children. However, once parenting plans and schedules are in place and the divorce is final, both parents still have to raise the children. If the children are very young, both parents must continue to deal with one another as it pertains to the children for many years. In many cases parents can resolve issues amicably and cooperatively. Other times the situation is hostile and becomes increasingly hostile as parties grow more impatient with one another. The importance of co-parenting during this time is significant.

Co-parenting involves sharing responsibilities and decision-making with the other parent while maintaining separate households. Co-parenting is successful only if both parents are willing to work at it. If both parents cooperate and help to instill a successful co-parenting environment, it is not only beneficial for the parents but ultimately it is the best situation for the children. Divorce is stressful on children but this stress can be alleviated when parents work together for the benefit of the children.

Children have a great need to feel loved and supported by both parents. When both parents have a healthy co-parenting relationship, the children receive the stability and security they need amidst a stressful divorce. Children can learn valuable life skills from watching parents successfully co-parent. Through positive behavior and example, parents can teach their children accountability, problem solving skills and how to cooperate with others. Parents have a tremendous opportunity to set a great example for their children when they successfully co-parent.

Successful co-parenting begins with a solid parenting plan. Parenting schedules, including pick up and drop off times, must be specific. Parenting plans should address everything from education, medical issues, holiday schedules, finances and decision making guidelines. Flexibility, however, is also key. Parents should be flexible with one another. Life is uncertain and unexpected events are bound to come up. If you are flexible when the other parent needs a change in the parenting plan, chances are the favor is returned. If you choose to be difficult with the other parent it is likely you will receive no favors.

Continue reading "Divorce and the Kids - Co-Parenting" »

By Bill Edie, Attorney at Law, Gasper Law Group

Question: “My wife is going to get called as a prosecution witness in my criminal case. What do I do?”

Answer : “Stay happily married.”

Well, sometimes. Colorado, like many states, has enacted a statute, referred to as the “marital privilege,” which can prevent spouses from testifying against one another, even if they might otherwise be ready, willing, and able (and regardless of how critical they might be to the prosecution’s case). This privilege is purely a creature of state statute, not a constitutional right, and thus can be changed by the legislature at any time. Also bear in mind that every state is different in its details and applications, as is the federal system. Our discussion here is limited to Colorado.

Here’s generally how it works: If you are charged with a class 4 felony or below (details of classification of offenses in the State of Colorado can be found at the gasperlawgroup.com website), the state cannot call your spouse to testify against you about events she may have witnessed, (seeing you break into a car and stealing the stereo, for example) even if she is willing to do so. To invoke this privilege, you must be married at the time of the trial or hearing in question. If a pending divorce becomes final prior to your trial, her testimony is fair game, even if she does not want to testify against you.

There’s another component to class 4 felonies and below. As a general rule, confessions to crimes are admissible against the person making them. It does not have to be a police officer receiving that confession to have it come in against you. It could be your boss, your bartender, your cell mate in jail, or your best friend. Again, Colorado’s marital privilege comes to the rescue. If you later confess privately to your wife to committing that car break-in, you can prevent her from testifying to the confession, regardless of her wishes. In this case, what is critical is your marital status at the time of the confession, not your status on the day of trial. So, as long as you’re married when you confess, she can’t nail you at trial even if the divorce has since become final, and even if she wants you to suffer. But never, ever, confess to your ex-wife, even if you’re still close. All bets are off.

Continue reading "“What’s Love got to do with it?” - Spousal Privilege in CO." »

By Carrie E. Kelly
Attorney at Law
The Gasper Law Group

Chances are, if you’ve come to this article, you’re either contemplating filing a divorce or you’ve recently been served with divorce paperwork and are wondering what the heck the next six months of your life will look like. The intent of this article is to give you a basic idea of how a typical divorce progresses so that you have some idea what you’re going to be facing. Depending on your particular case, there may be a need for additional hearings or emergency motions, but most cases will fit into this basic roadmap.

Step One: The Initial Status Conference

The Initial Status Conference is usually held 30 days after the divorce is filed. There are two goals of the Initial Status Conference. The first is for the parties to let the judge know what issues are going to be involved in their case. There are five potential issues in every case: spousal maintenance, parental responsibility/parenting time, child support, division of debt and division of property. Not every potential issue applies in all cases, so the judge will want to know what your particular case involves.

The second goal is for the judge to give the parties deadlines and to schedule a Temporary Orders Hearing. If you have children, you will receive information on the mandatory parenting class. If you haven’t already completed your initial financial disclosures, you will be given a deadline. If you think you may have a need for either a parenting evaluator or a financial expert, you will be given a deadline for requesting the appointment of an expert. And finally, if you have already reached any agreements, the judge will include them as part of your order.

Expect this court date to take approximately 15 minutes

Step Two: The Settlement Conference

Sometime after the Initial Status Conference but before the Temporary Orders hearing, you’ll need to participate in a settlement conference. The Settlement Conference only needs to cover the Temporary Orders issues. We don’t need to decide who is going to take on the Visa and the Mastercard on a permanent basis, we only need to decide who is going to pay the minimum monthly balance while the divorce is pending. It’s important not to get too far ahead of yourselves.

The only real requirement for a settlement conference is for each party to inform the other party what they intend to ask for at the Temporary Orders Hearing and to make an attempt at finding any common ground. How exactly this is arranged is up to the parties. The most common scenario is for the parties and the attorneys to all meet at one attorney’s office and have a face to face discussion. If this can’t be arranged (due to work schedules, for example) or is undesirable (often victims of domestic violence are uncomfortable with this set up), a telephone conference may be set up or the attorneys may even trade proposals back and forth over a period of days.

Step Three: The Temporary Orders Hearing

If you had a successful Settlement Conference, you will not need to have a Temporary Orders Hearing at all. If you settled some, but not all or none of the Temporary Orders issues, then you will need to have either a partial or full hearing.

Temporary Orders hearings are generally held 30 days after the Initial Status Conference, but the exact timing will depend on the court’s calendar and the availability of the parties. The hearing typically lasts one hour which means you will only get ½ hour to both present your case and to cross examine the other party. This is a very limited amount of time so it is important that you stay focused during your testimony.

At the end of your Temporary Orders Hearing, the judge will issue orders about temporary spousal maintenance, temporary use of marital property, temporary payment of marital debts, temporary parenting time and temporary child support. These orders are temporary in that they are in effect while your divorce is ongoing. The judge will revisit all of these issues at the Final Orders Hearing, but in the meantime, these are the orders of the court and you must comply with them.

Continue reading "Dissolution of Marriage Roadmap" »

Robert R. Gray, Senior Paralegal and Office Administrator

"Divorce attorneys are expensive ... I bet I could save LOTS of money if I did my own divorce ... after all, my wife and I are on friendly terms. Of course, I would have a paralegal check out the paperwork, but at a fraction of the cost."

Just writing this brings up bad memories. That was me 15 years ago ... a pretty smart guy, Project Manager for a manufacturing company, college degreed and pretty competent with documents, etc. I saved at least $3000.00 by not hiring a lawyer! So far, so good.

Three years after the divorce, two of my children graduated from high school. They had stayed with me so they could get through school. Their mother moved out of state when we were divorced. It was OK, I didn't need her to pay child support for those kids that stayed with me! The day I recieved the notice that my wages were being garnished for $16,000.00 of back child support ... well ... that got my attention. I'll never forget the three little words my ex-wife said to me when I called her to ask why I was being charged child support for the children that had resided with me the past three years. Those three words ... "READ THE PAPERS"!

You guessed it ... somehow, some way, the Final Decree showed she had the children! Of course, I wasn't worried, all I would have to do is call the court and let them know of the mistake. Funny, they said the same three words ... "Read The Paper"!

Continue reading "Pro Se Divorce: Why Bother With An Attorney?" »