Posted On: December 30, 2011

ALL IN THE FAMILY – A CONFLICT OF INTERESTS

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

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?

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Posted On: December 28, 2011

The Road to Parental Alienation is Paved with Good Intentions

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.

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Posted On: December 20, 2011

Social Media, the First Amendment and your Family Law Case

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

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Posted On: December 19, 2011

Marital Debt in Colorado

The Gasper Law Group, PLLC

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).

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Posted On: December 15, 2011

Children and your attorney’s office

The Gasper Law Group, PLLC

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.

Posted On: December 12, 2011

PRISON INMATES AND CHILD SUPPORT

The Gasper Law Group, PLLC

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!!!!

Posted On: December 11, 2011

YOU CAN’T GO HOME AGAIN - Divorce and the Marital Home

The Gasper Law Group, PLLC

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.

Posted On: December 8, 2011

The Use of Experts In Divorce Cases

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.

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