By Natalie R. Mitchell
Attorney at Law
By Carrie E. Kelly
Managing Attorney, Domestic Relations Division
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.
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.
Domestic relations attorneys are most familiar with the husband and wife model of litigation. Family law attorneys are also familiar with assisting a large number of couples who find themselves crashing and burning before the wedding bells ring. The cases are familiar: a male, a female, and the division or allocation of property, assets, debts, parenting time, parental decision making, child support, and sometimes the family dog is in dispute.
In June 2013, the Supreme Court of the United States deemed unconstitutional Section 3 of the federal Defense of Marriage Act (DOMA). On March 12, 2013, Colorado approved civil unions, which recognizes that same sex individuals may have their property, assets, debts and other benefits (e.g. retirement plans) subject to division under Colorado’s domestic relations laws.
So, domestic relations attorneys must now impress upon their clients the importance of recognizing civil unions, discuss the relative rights and obligations of individuals in a civil union and must navigate their clients through the new landscape of dissolving civil unions.
Call The Gasper Law Group for a free initial consultation to discuss the ramifications and benefits of Colorado’s Civil Union legislation and the impact of the Supreme Court’s decision to strike down Section 3 of the Defense of Marriage Act (DOMA).
At the very least, you need an attorney who will properly and confidently analyze individual benefit plan documents to determine whether benefits may be allocated in same-sex civil union relationships and, if so, how they can be divided.
“He cheated!” She broke your heart! He tore the family apart! It’s her fault she had an affair!
We’ve heard it all. It’s heart braking and it’s unfair, but it doesn’t matter to the courts.
Many people come to our office seeking parenting orders not only for parenting time and expenses for the children, but also with regard to who gets to take child tax exemptions each year. A common question we are asked is “Why does he/she get to take tax exemptions when he/she never sees the children?” Many people come to our office and do not understand why the other parent should be entitled to claim any exemptions if the children are not residing with that parent at least ½ of the time or in some cases simply at all. The bottom line, however, is that the other parent is entitled to claim exemptions because Colorado law provides them this right.
<img alt="Tax%20Law%20with%20Gavel%20-%2008-18-12.jpg" src="/files/2014/07/Tax-Law-with-Gavel-08-18-12.jpg" width="425" height="282" align="left" style="margin-right: 8px;"/
I stop at this point and state that our Family Law Division attorneys are not tax attorneys or accountants. Our standard response to tax related questions is to advise our clients to go seek the assistance of a tax attorney or accountant. However, we can tell you that Colorado law provides the sharing of tax exemptions for parents who share the financial burden of raising children. Sharing does not mean equally sharing the total financial burden that comes with raising children. Colorado law states that if a party is paying court ordered child support, regardless of whether or not they are exercising any parenting time or contributing to other costs for the child, the paying parent is entitled to their proportional share of the child tax exemptions. For example, if Mother makes $150,000 per year and Father makes $75,000 per year, Mother will be entitled to approximately 67% percent of the tax exemptions and Father may be entitled to take 33%. Typically this equates into a schedule where, in an example with two children, Mother might take the tax exemption for two years and Father might take the tax exemptions in the third year. There are a variety of ways to structure the exemptions and it is important it is clear in any Agreement or Order of the Court as to who is taking which exemption each year.
We’ve all seen them. The cliché romantic comedy or the storyline concocted to draw in viewers for May sweeps. The “will they/won’t they” couple, through a drunken haze or a misunderstanding of foreign culture, end up hitched. Yet in the harsh reality of the next morning’s light one of the parties adamantly insists the night before was just “one big mistake.” The cliffhanger leaves the audience wondering how such a horror can be rectified.
Like a shining beacon of hope one little word is uttered… annulment. How simple it sounds. The court can invalidate the marriage and it will be as if nothing ever happened. However, an annulment is not as simple as proposed by our good friends in Tinseltown. Because, let’s face it, the legal particulars of invalidating a marriage would not be as endearing as Hugh Grant stumbling through his latest apology.
Perhaps the leading misconception surrounding annulments is the ease with which they are granted. Though the parties are spared the 90 day waiting period associated with a divorce, the grounds for which an annulment may be granted are far stricter. For an annulment to be granted in Colorado, proof of one of the following must be provided:
(1) A party lacked capacity to enter the marriage as a result of either mental capacity, infirmity or influence of drugs or alcohol;
(2) A party lacked physical capacity to consummate the marriage;
(3) A party is underage and did not have consent of his or her parent;
(4) One party entered into the marriage in reliance upon a fraudulent act or representation of another that goes to the essence of the marriage;
(5) One or both parties entered into the marriage under duress;
(6) One of both parties entered into the marriage as a jest or dare;
(7) The marriage is prohibited by law
In addition to meeting one of the reasons listed above the parties must begin annulment proceedings within a certain time frame. The reason you seek an annulment will dictate the timeframe you have to file for an annulment. For example, if you wish to annul your marriage because of fraudulent representation that goes to the essence of the marriage you must begin proceedings within 6 months of learning of the fraudulent representation. Whereas if you want to annul your marriage because a party lacked the physical capacity to consummate the marriage you have one year after learning of the condition.
We’ve all heard the phrase “drowning in debt.” We’ve also heard the phrase “treading water.” If, when it comes to your debt, you are “treading water” but know you’ll soon get divorced, this article is for you.
Jack and Jill are getting divorced. They have approximately $30,000 in debt due to credit cards and unpaid medical bills. In the state of Colorado, debt acquired during the marriage, like their medical bills and credit cards, is normally treated as debt of the marriage, even if it was acquired by only one spouse and not the other. When Jack and Jill’s family splits into two, the household with the least income is hurt more financially. If Jack and Jill together were only “treading water” when it comes to debt, now that Jack and Jill have separated, they probably each feel like they are “drowning in debt.”
What should Jack and Jill do? Well, first, having a lot of debt makes any divorce messy, and going further into debt paying attorneys to split up Jack and Jill’s existing debt doesn’t make a lot of sense. What Jack needs to realize is that even if the Court orders Jill to pay their Visa bill, the credit card company can come back and sue Jack if Jill doesn’t pay. The credit card companies will say their contract is with Jack and that the divorce orders don’t affect a thing.
When “I Do” turns into “I’m pretty sure I don’t” your friendly neighborhood courthouse comes rushing to your aid with a nifty little tool called “Divorce.”
But why have you decided that you are no longer willing to have and hold ‘til death do you part? Guess what? The courts don’t care. That’s the beauty of the no-fault divorce in Colorado.
Most states offer no-fault divorces and most of those states don’t even require a statutorily mandated separation period. Colorado is one of those states where you need only represent to the court that the marriage is irretrievably broken. The courts don’t care to know who spends every waking hour at the strip club, who pelted who with a bagel (actual example), or who leaves wet towels on the bathroom floor. More importantly, your judge doesn’t want to hear, “But she cheated on me!” Similarly, your judge is not concerned with violence against each other unless that violence affects minor children.
One reason most states have transitioned to no-fault divorces is because the courts just don’t have the time or patience to listen to who hates who more. The other big reason is because courts also don’t want to listen to the served party argue as to why he or she would prefer to remain married.
Divorce is devastating in every aspect: financially, emotionally, and mentally. Most people can’t count divorce as one of the most enjoyable things they’ve done. While you may want to tell everyone just how awful your soon-to-be ex is, the courts won’t listen. The events and emotions leading up to the decision to divorce are deeply important to you, but no-fault means no-blame. “Irretrievably broken” means the marriage can’t be fixed. That’s it. That’s all the judge wants to know.