Posted On: December 12, 2010

Divorce and your Military Retirement

The Gasper Law Group, PLLC

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You’re military or retired military and getting a divorce. What does this mean for your military retirement? Just like many areas of family law the division of military retirement is governed by law but fact intensive. What does this mean? The division of your military retirement will depend on a variety of factors.

First, as the law stands now, the only portion of military retirement that the state court has the authority to divide as property is the portion that is “disposable”. Disposable military retirement is what is left over after such things as a VA disability election and other payments defined by statute.

Second, Colorado courts often divide your disposable military retirement via the “Hunt/Gallo” formula which is named after two very specific Colorado cases. This formula considers the overlapping months of marriage and service and then giving the non-service member spouse a certain percentage of that.

This all sounds simple enough, right? Take your military retirement, get the highest disability rating you can, subtract that from the total amount and your spouse will get less. WRONG! This is a bad idea, the courts are wise, they have developed case law which allows them to look at the timing of the election and take other martial assets to make an equitable division of the property. The court could consider the timing of the election and award other martial assets to your spouse to make up for the portion of the retirement they are not receiving because of the disability election. The court could also award spousal maintenance to your spouse if a need is established.

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Posted On: December 12, 2010

Colorado Alimony (Spousal Maintenance)

The Gasper Law Group, PLLC

In Colorado divorce cases the judge or magistrate will determine whether alimony (which is called "spousal maintenance" in Colorado) should be awarded to you or your spouse, assuming it was requested by a party. It is important for you to understand the impact that alimony may potentially have in your case.

Alimony is intended to assist a spouse who lacks sufficient property to provide for his/her reasonable needs, and is “unable to support himself/herself through employment according to the Court. Alimony must be specifically requested by a party before the Court will award it. For example, if no request for alimony is made at the final hearing, then the Court will ensure that the parties understand that once waived, the right to receive alimony may never again be reasserted.

Generally, the longer the marriage, the more likely the court is to award alimony in your case. However, it is important to remember that there are always exceptions, every case is different, and there are a number of factors to consider; this is not necessarily a given. Your case may involve unique circumstances. Though there is no set standard, spouses married just a couple of years do not often receive maintenance upon divorce in Colorado. If the marriage was long enough (typically at least 20-25 years or more), the Colorado divorce judge may even award one spouse lifetime alimony, depending on the other factors involved such as the age of the parties, employment history, education, and the ability of each to work outside the home. Maintenance in Colorado is terminated by the death of either party, or the remarriage of the spouse receiving alimony. Cohabitation with a new significant other does not terminate the maintenance obligation under Colorado law.

WHAT IF MY SPOUSE REQUESTS THE JUDGE TO ORDER ALIMONY WHILE THE DIVORCE CASE IS PENDING?

This is called “temporary spousal maintenance.” Your spouse is not required to request this, however, and it will not be addressed by the Court unless someone requests that the Court enter orders addressing the issue. There is a presumed level of temporary alimony in Colorado, in cases where a couple's combined gross annual income is equal to or less than $75,000. If you and your spouse’s gross yearly incomes added together equal $75,000 per year or less, then it is likely that at a temporary orders hearing the Colorado family law magistrate will apply a mandatory formula and award maintenance equal to 40% of the higher income earner's gross monthly income minus 50% of the lower income earner's gross monthly income. This statutory formula, which can be draconian, is required to be applied by the judges and magistrates, who cannot exercise discretion to change what they have been mandated to do.

Under those circumstances, this Colorado alimony formula applies regardless of the length of the marriage. C.R.S. 14-10- 114(4) requires that maintenance be determined "without regard to marital misconduct.” It does not matter if a spouse committed adultery or other moral or wrongdoing; the Court generally must order a maintenance amount based on the above formula (on a temporary basis only.) In other words, if your spouse cheated on you and ended the marriage, it will be irrelevant to the Court regarding maintenance. Your attorney cannot present an argument to the court that, since your wife cheated on you with five different men and is now living with her new boyfriend, you should somehow not have to pay spousal support to her because of that moral wrongdoing. Another painful example: even if you were only married for a few months, it does not prevent the other spouse from requesting temporary maintenance pursuant to the formula, even though the spouse will almost certainly not get any maintenance when the divorce is final.

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Posted On: December 6, 2010

The “Happy Holidays” of Family Law

The Gasper Law Group, PLLC

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The turkey is in the oven; the Christmas lights are about to be hung. The inflatable snowman is set up in the yard, and the cookies, well, you get the idea, it's "Family Law". Black Friday is less than two weeks away and may take on a different meaning for children of broken homes.

This is the worst time of year for a paralegal. It may be the worst time of the year for parents that have Temporary Orders in January and no relief in sight for Holiday parenting time disputes.

First and foremost, a refusal by the other parent to allow you parenting time with your children does not necessarily mean your attorney can file an emergency motion with the court. Statutes allow for the court to order you to pay attorneys fees for the other party if your motion is groundless or frivolous. Unfortunately, in these situations one of the parents has to bend. As much as you may not like it you may be the one who needs to give up some holiday time in order to keep the peace. Consider offering to split time evenly or offer Christmas to your spouse/other parent and offer to take Christmas Eve. It is only a temporary plan and chances are the court will order you to get the holidays the next year since you took the higher ground and gave up the time for the current year.

Also, the worst thing you can do is not allow the children to take presents with them to the other spouses/parent’s home. It is a special day for the children and should be about the children. It puts the children in the middle when you tell them they can’t take their new toy to the other parent’s home.

Posted On: December 6, 2010

Immediate Results: The Fallacy in Personal Injury Cases

By Matthew B. Drexler, Partner
The Gasper Law Group, PLLC

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Civil litigation disputes take numerous forms such as a personal injury suit stemming from an auto accident, slip and fall, or other cause of serious injury to the less dramatic business torts including breach of contract, filing and foreclosing on a mechanic's liens, or commercial products liability. With respect to personal injury cases, prospective clients often seek and may be influenced by promises of "immediate results". Unfortunately, there is nothing "immediate" about civil litigation, especially in the context of a personal injury or accident case.

In the words of a close colleague of mine, "I can settle your case right now, but you won't like the results."

A typical "personal injury" lawsuit may arise from an automobile accident. Boiled down to the most basic, one driver claims another driver is at fault and files suit against the at-fault driver. Depending on the severity of the injuries and the complexity of the actual collision (i.e. whether experts are needed to recreate the accident with the use of computerized models), a typical case can take anywhere from several months to several years. In fact, the time your attorney works on your case is not necessarily related to the time it will take to achieve a resolution. After all, your case can be resolved at an early settlement conference, mediation or ultimately trial.

However, before you can even think about settlement, your attorney and his or her staff needs to learn a great deal of information about your case. The reality is that civil court dockets are clogged and the attorneys' and experts' schedules are jam-packed with depositions, settlement conferences, motions deadlines, and other meetings. In the case of personal injury suits, it is not uncommon that the extent of a client's injury and treatment plan are not even known until months after the injury happens. Moreover, imagine the red tape, bureaucracy and other legal hurdles involved in getting police reports, medical records, and other official documents from third parties … not to mention obtaining documents from the insurance companies and opposing party. The inherent delays in civil litigation should remove any notion that an "immediate result" is on the horizon in a personal injury case.

Here's the good news though … a well prepared case based on reliable information and documents fetches much more than an uneducated, quick-trigger settlement. When you have a serious injury, a quick resolution will often not afford you the costs and impact of a long-term treatment plan. A case from last year highlights the value of a well-prepared attorney who had time to build a case.


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