Posted On: January 24, 2012

‘IT’S MINE!”

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

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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.

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Posted On: January 24, 2012

BREAKING UP IS HARD TO DO

By Laura A. Good
Senior Paralegal
The Gasper Law Group

A divorce is hard enough on the parents, but doesn’t have to be on your kids. Telling your children that Mommy and Daddy are getting divorced will probably be one of the most difficult talks you will ever have with your children. Most importantly, parents must prepare themselves in advance when talking to their children. Be aware of the words you use and of the impact your words will have on them. Depending on their age, the “scars of divorce” could carry with them the rest of their lives.

There are many common mistakes parents make during this difficult time. Here are just a few:

1. Sharing information only meant for adults or telling the children the “reason” for the breakup. Many times parents want to “win” over the children by telling them their side of the story. Only adults should be privy to hear this type of information. Telling your children that Mommy or Daddy had an affair and has now chosen someone else could be devastating to the children and how they view their parents. Telling your children the “dirty” details and information only creates undue stress on your children. Keep it simple, give them reassurance, and leave out the details.

2. Making the children choose. Often times the children are asked or pressured to choose between Mommy and Daddy. Don’t put them in this position. Reassure them you both love them and although you are no longer going to live together, you are still a family and that you love them very much.

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Posted On: January 24, 2012

Your Credibility With The Court; How to Lose It!

The Gasper Law Group

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People commonly want to know how Judges make their rulings. Often times, clients think that it’s a smoking gun piece of evidence that makes or breaks a case. This is rarely true, especially in a divorce or parenting case. Although, the bench has an appreciation for evidence they are often looking at something much simpler: credibility. Many attorneys do not discuss the importance of credibility with their clients prior to testifying at a hearing. Family law cases are riddled with he said/she said evidence, and Judges often must decide who to believe. Often times, I have heard Judges say to one party or another “sir/ma’am you are simply not credible” and then follow up with a ruling in favor of the opposing party.

One thing that we commonly stress to our client’s is that credibility is key. Sometimes it involves not filing a motion that you believe in your heart to be appropriate and true, but unable to prove because you don’t have the concrete evidence needed to support the motion. By filing that one motion, the tone is set with the court and your credibility may be questioned going forward. Taking unreasonable positions is another thing that we at The Gasper Law Group try to avoid and counsel clients on.

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Posted On: January 24, 2012

THE “NOTICE TO SET” PROCESS

The Gasper Law Group

At some point in any Domestic Relations case you will hear the term “Notice to Set”. Majority of the time, people do not understand what a Notice to Set is. In Colorado, the Courts require ten days advance notice before any hearing gets set on their docket. A Notice to Set is the document that notifies all parties, ten days in advance, that one party is going to call in to the designated Division on a certain date and time to schedule a hearing. If you are the requesting party, you must send a copy of the Notice to Set to all other parties to notify them of your intent to set a hearing so they can participate in the setting if they choose.

Each Division has specific setting days and times. So the Notice to Set will designate a setting date and time that is allowed by the assigned division. For example, one division may do their settings on Tuesday or Wednesday and another on Monday or Thursday. On the day of the setting, the requesting party will call in to the assigned division, at the designated time, to speak with the Court Clerk and obtain possible hearing dates that are available on the Court’s docket. Each division varies on how they choose to include the other party in the setting. They will either conference call the other party and coordinate a hearing with both parties at the same time, or they will give the requesting party possible dates and the requesting party is responsible for coordinating with the other party. Once all parties have agreed on a hearing date, the Court Clerk will assign the task of preparing the Notice of Hearing. The Notice of Hearing will specify your actual hearing date.

Lastly, when you receive a Notice to Set in the mail, be sure to read it closely. It will state directly on the Notice that the setting date is not a hearing and your attendance is not required. If you are represented, your attorney will contact you with the actual hearing date once it is set.

Posted On: January 23, 2012

The Power of Negotiated Agreement

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

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