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.

April 27, 2009

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

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.”

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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.

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April 1, 2009

Dissolution of Marriage Roadmap

By Carrie E. Kelly
Attorney at Law

The Gasper Law Group

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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.

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