August 27, 2013

Same-Sex Relationships: Breaking it Down

By Matthew B. Drexler, Esq.*
Teresa A. Drexler, Esq.*

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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.

Continue reading "Same-Sex Relationships: Breaking it Down" »

September 11, 2012

Divorce in Colorado after Infidelity

"He cheated!" She broke your heart! He tore the family apart! It’s her fault she had an affair!

The Gasper Law Group, PLLC

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We’ve heard it all. It’s heart braking and it’s unfair, but it doesn’t matter to the courts.
Colorado is a no-fault divorce state. Meaning the person asking for a divorce DOES NOT have to prove the other person committed adultery, was physically or emotionally cruel or abandoned the other party. Instead, they just have to state that the marriage is irretrievably broken. A no-fault divorce state like ours also means that the other person has no grounds to object to the Petition for Dissolution. If one person thinks the marriage is irretrievably broken, the marriage is irretrievably broken.

Another consequence of our no-fault divorce state is that in dividing martial assets or awarding maintenance the Court is not going to consider the wrongs of the other person that lead to the marriage breaking down. There will be no financial compensation for broken vows or a broken heart. Likewise, in determining child custody the Court is going to only consider those factors that help it determine what is in the best interest of the children. Generally, an extra-marital affair is not going to come into play when a Court makes this decision.

So, at the end of the day in Colorado, all that matters to the Court is that the marriage is broken, not the how or why it became broken. Although this may not be fair, especially for the wronged spouse, it makes divorces a lot cleaner since a person’s dirty laundry is not aired.

August 19, 2012

Child Tax Exemptions: What am I allowed to claim?

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

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.

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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.

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August 13, 2012

A Hollywood Annulment

By Jessica L. Hughes
Attorney At Law
The Gasper Law Group, PLLC

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.

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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.

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August 13, 2012

Bankruptcy and Divorce: Get Out of Debt before Getting Out of Marriage

By Haily Kolberg
Attorney At Law
The Gasper Law Group, PLLC

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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.

Continue reading "Bankruptcy and Divorce: Get Out of Debt before Getting Out of Marriage" »

August 7, 2012

Hillbillies, bagels and “No-Fault” Divorce

The Gasper Law Group, PLLC

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.”

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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.

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August 2, 2012

Finding the Cost of Freedom: Splitting Personal Property

The Gasper Law Group, PLLC

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Years, sometimes decades, worth of furniture, china, tools, books, DVDs and Christmas ornaments need to be separated at the time of a divorce.

As with all marital property issues in the State of Colorado, the law requires the court to divide the personal property accumulated during a marriage fairly and justly. However, the judge isn’t going to go through the marital home for you and make sure you each get an equal number of forks, spoons and Tupperware containers. If you and your soon to be ex cannot agree on the division of personal property yourselves, a Court will be more likely to take a hatchet than a scalpel to the personal property at issue.

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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.

Continue reading "‘IT’S MINE!”" »

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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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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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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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.

Continue reading "The Road to Parental Alienation is Paved with Good Intentions" »

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

Continue reading "Social Media, the First Amendment and your Family Law Case" »

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).

Continue reading "Marital Debt in Colorado" »

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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July 8, 2011

Why Is My Written Order Taking So Long?

By Laura A. Good, Senior Domestic Relations Paralegal
The Gasper Law Group

You’ve had your day in Court, the Judge made his ruling and now … where’s my order?
Even though the Court has made its verbal ruling, a written order is not immediate in most cases. Most of the time, written orders can takes weeks to receive from the Court. Many times the attorney must order a transcript of the Court’s ruling, which generally takes 10 days when ordered on an expedited basis. Once the transcript is received, a Motion to Adopt Transcript as Order of the Court, along with a proposed order, is submitted to the Judge for entry. Once the Judge receives the Proposed Order, your attorney has no control over how quickly the Judge reviews and signs the Order, no matter how much begging or pleading you do.

If a transcript is not ordered, generally the Court requests one of the attorneys to prepare what is called a “long order.” Once the order is drafted it is sent to opposing counsel for their review and approval. This process can unfortunately can go back and forth for days or some times weeks to “fine tune” the order and agree on the exact verbiage of the Court’s ruling. Once the proposed order is approved by both attorneys, it is submitted to the Judge for review and entry.

Continue reading "Why Is My Written Order Taking So Long?" »

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.

Continue reading "Colorado Alimony (Spousal Maintenance) " »

October 2, 2010

Divorce In Colorado - Disclosures (Part I)

The Gasper Law Group

(Note: Courtney is no longer with the firm as she was "PCS'd" with her husband who is serving our country in the United States Army. We would like to thank Courtney for her time with us and thank her husband, John, for his service to our country)

So here we are. You or someone you know is either starting a new case, or already underway in the Domestic Relations process. I say Domestic Relations rather than Divorce or Allocation of Parental Responsibilities (Child Custody) because both are considered Domestic Relations cases as described by Colorado Rules of Civil Procedure 16.2, therefore both include Form 35.1: Mandatory Disclosures.

Mandatory Disclosures is a legal description of everyday financial paperwork that everyone has. This includes, but is not limited to, bank accounts, housing paperwork (rental agreements, mortgage payments, buying/selling paperwork, etc), and Debts (student loans, mortgages, credit cards, etc.). I say not limited to, not only to poke fun at our profession, but also to point out that Colorado Rules of Civil Procedure 16.2 (e) and Form 35.1 are quite extensive. Most people do not take the time to read the Instructions thoroughly and therefore it causes a bottleneck in the disclosure process.

Before we delve too deeply into why disclosures are important you must understand the importance of the Financial Statement. The Financial Statement is the main ingredient of you meal while disclosures are the spices that satisfy the palate of the judicial system. The Financial Statement is a calculating spreadsheet of your finances during that particular period of your life. You may submit an updated Financial Statement if you get a promotion/lose your job, or have any other significant monetary change in your life. The Financial Statement is the best way to ‘explain’ to the Court what you are making, spending money on, and what sort of debts you have incurred during your marriage, for example. This is a Statement that the Court will scrutinize when deciding Child Support and/or Spousal Maintenance.

Hopefully you are starting to realize that although calling banks, pulling out your old statements and delving into personal trusts may feel awkward and a violation of some sense of personal space, however the alternative may be an even bigger violation. To not to comply with Rule 16.2 (e) means you may unfairly be penalized (i.e. strict Child Support regulations) when you may have very well received a verbal pat on the back (i.e. less than what you are already paying). This is not to say to that you do all the right things (i.e. comply with Colorado Rule of Civil Procedure 16.2 (e)) and you may not be asked to pay more in Spousal Maintenance or Child Support. Weirder things have happened. Some people feel that if they ‘hide’ their uncle’s trusts or ‘hide’ their second income they may not have to pay any sort of Support…this is completely incorrect. The more forthright you are on your Statement and with your disclosures the better your Counsel will be able to represent to the Court your current financial situation and may be able to work with the Court to find some middle ground.


Continue reading "Divorce In Colorado - Disclosures (Part I)" »

October 2, 2010

Divorce In Colorado - Disclosures Part II

The Gasper Law Group, PLLC

For those of you who have not finished your disclosures, please keep in mind that Colorado is an equitable distribution state. What does that mean to you and your future ex spouse? It means that the Court will allocate the division of assets and debts equally between the parties.

That means you will need to disclose every marital asset and marital debt to your attorney. What is martial you ask? Marital is anything acquired or incurred during the marriage. So let’s say for instance that your wife has a credit card for Target and the balance on the account is $5,000.00. That debt is considered marital. On the flip side of that, let’s say that she has a 401 (k) that she’s been contributing to for the entire duration of the marriage. That asset is considered marital too.

When you are gathering your disclosures to bring to your attorney, make sure you have everything together. If you bring documents in sporadically, your paralegal will end up spending a long time reviewing the documents.

In an effort to help you gather your documents easily, I have covered the basic JDF financial affidavit.

Section 1 covers income.

The first question on a financial affidavit is: What is your gross monthly income?
This is your chance to gather your paystubs for the last three months. The second question is do you have miscellaneous income?

Most people don’t have miscellaneous income, but if you do, this is your chance to gather that documentation. (If you have rental income, remember it’s the net that you get from the rental, whatever you pocket after the mortgage is paid).

Section 2 covers the Mandatory and voluntary deductions from your paycheck.

Your paralegal should be able to calculate all that information for you, but please remember to include how many people are covered under your health insurance.

Continue reading "Divorce In Colorado - Disclosures Part II" »

October 2, 2010

The Divorce Process - Discovery: Interrogatories and Requests for Production of Documents

The Gasper Law Group, PLLC

Discovery is used in all different types of law, including Domestic Relations. In all Divorce or Parental Responsibility cases, you are asked to provide a Financial Affidavit and financial disclosures to the other party. Discovery goes beyond the disclosures that you are expected to provide with your Financial Affidavit. Unlike your Financial Affidavit, Discovery is optional and varies from case to case. Discovery is defined as, “the methods used by parties to a civil or criminal action to obtain information held by the other party that is relevant to the action.” In most contested, high asset divorce cases, one party will issue Discovery on the other party. This can be in the form of Interrogatories and Requests for Production of Documents. There are two types of requests, Pattern and Non-Pattern. Pattern Interrogatories or Requests for Production of Documents are a set of questions or requests that are specifically outlined in the Colorado Rules of Civil Procedure. They are consistent and the same in every case. Non-Pattern Interrogatories or Requests for Productions of Documents are created by the requesting party. The requesting party is only allowed a maximum of ten (10) Non-Pattern Interrogatories and/or Requests for Production of Documents. Pursuant to C.R.C.P. 34 you have thirty (30) days to respond to discovery requests.

The legal definition for Interrogatory is, “a written question directed by one party to another regarding information that is within the scope of discovery.” When you are issued Pattern and Non-Pattern Interrogatories, you will notice that they are simply a series of questions that require an answer. They will usually request very specific information about your past employment history or certain assets you may possess or have possessed during the length of the marriage. Your answers must be detailed and complete. Interrogatories may also be used in parental responsibility cases and will ask questions pertaining to parenting time and decision making.

Continue reading "The Divorce Process - Discovery: Interrogatories and Requests for Production of Documents " »

October 2, 2010

Restraining Orders - Be Careful What You Ask For!

By Teresa A. Drexler
Attorney & Partner
The Gasper Law Group

Here is the scenario: James comes home from work to his wife Jane and three children under the age of five. Jane is stressed out and James is tired from work. The children are already asleep for the night, tucked in bed sound asleep. Soon an argument ensues and quickly escalates with the parties becoming verbally abusive with each other. Jane threatens to hit James and James leaves the home. The next day Jane decides to file for divorce and considers filing a Civil Restraining Order against James due to the verbal abuse she endured the night before. Jane talks to her friend who informs Jane that if she files a Civil Restraining Order against James and files for divorce at the same time Jane can obtain an advantage in her divorce case against James. Jane decides to file for divorce and file for a Civil Restraining Order. Jane includes the three minor children as protected parties thereby unnecessarily restricting James’ parenting time. Jane knows there is really no fear of James hurting her but decides to file the Restraining Order based on her friend’s advice that Jane will gain an advantage in the divorce case if she does. Unfortunately, this scenario actually occurs in real life more often than you would think.

Continue reading "Restraining Orders - Be Careful What You Ask For!" »

September 13, 2010

Devil is in the Details - Divorce Disclosures!

The Gasper Law Group, PLLC

For those of you who have not finished your disclosures, please keep in mind that Colorado is an equitable distribution state. What does that mean to you and your future ex spouse? It means that the Court will allocate the division of assets and debts equally between the parties.

That means you will need to disclose every marital asset and marital debt to your attorney. What is martial you ask? Marital is anything acquired or incurred during the marriage. So let’s say for instance that your wife has a credit card for Target and the balance on the account is $5,000.00. That debt is considered marital. On the flip side of that, let’s say that she has a 401 (k) that she’s been contributing to for the entire duration of the marriage. That asset is considered marital too.

When you are gathering your disclosures to bring to your attorney, make sure you have everything together. If you bring documents in sporadically, your paralegal will end up spending a long time reviewing the documents.
In an effort to help you gather your documents easily, I have covered the basic JDF financial affidavit.

Section 1 covers income.

The first question on a financial affidavit is: What is your gross monthly income?
This is your chance to gather your paystubs for the last three months.
The second question is do you have miscellaneous income?
Most people don’t have miscellaneous income, but if you do, this is your chance to gather that documentation. (If you have rental income, remember it’s the net that you get from the rental, whatever you pocket after the mortgage is paid).

Section 2 covers the Mandatory and voluntary deductions from your paycheck.

Your paralegal should be able to calculate all that information for you, but please remember to include how many people are covered under your health insurance.

Section 3 covers your living expenses.

Subsection A asks you to document your housing expenses.
This is your opportunity to gather your mortgage statements, or rental agreement.

Subsection B asks you how much you spend on Utilities.
Of course these amounts fluctuate so, gather your utility statements for the last three months or so and average what you spend.

Subsection C asks how much you spend on Groceries and dining out.
Again, these amounts will fluctuate, so you might need to look at your bank statements and average what you spend.

Subsection D asks you to document any out of pocket medical expenses that you might have.
If you have prescriptions that you get filled every month, this is where you would document that expense.

Subsection E asks you to document your vehicle payments, insurance and gas.
The amount you spend on gas will fluctuate depending upon the price, time of year and how fuel efficient your vehicle is. As far as the insurance and registration, figure out what you spend on that in a year and divide that number by 12.

Subsection F asks you document any Children’s expenses that you might have.
Your child care expenses may fluctuate here depending on what time of year it is. If the kids are out of school on summer break, your daycare might be more expensive. You will probably need to update your financial affidavit once school is back in session.

Subsection G addresses your education expenses.
If you have a loan through Nelnet, or another institution, that is technically a debt and that will need to be entered in the debts section of the financial affidavit. If you spend money on books and supplies, enter is in section G.

Subsection H addresses Child Support and Maintenance that you pay.
If you pay child support or maintenance to another family, you can document that information here. If you are providing your current spouse child support and maintenance, document that information here as well.

Subsection I addresses miscellaneous expenses.
If you have a membership to the YMCA, or if you rent movies or subscribe to the Gazette, this is where that documentation fits in. (You might be surprised when you add up all of your expenses for the month)

Section 4 covers your debts
Everything was smooth sailing until you flipped the page, right? If you’re like the majority of middle class America, you have something to put in this section.
This section is a critical part of your case. Document every debt to the best of your ability. Include the date of the balance and what the expense was for. For every debt you add to this section, gather the monthly statements for each one.
When you find yourself procrastinating, just remember “equitable distribution”.
Whew. Now that this section is one, we move on to the assets section.

Section 5 covers your assets

Subsection A addresses the real estate that you might own.
You can find out how much you owe by looking at your mortgage statement. If you had your house appraised recently, you can enter that number as the estimated value you could sell it for. If you haven’t had an appraisal, you can look up the assessed value on the El Paso County Land Assessor. (Or you can have your paralegal look that up).

Subsection B addresses the motor vehicles that you own.
Be specific here. Your Attorney needs the make, model and year so that the actual value can be assessed.

Subsection C addresses your bank and financial institutions
List every account that you or your spouse has. If you need more room, just write on the back of the page. Remember, your assets offset against the debts. Gather the statements for the last three months for each account. If you can’t get your hands on your spouse’s statements, don’t worry, your spouse will need to disclose those.

Subsection D addresses Life Insurance
Most people don’t have Life Insurance apart from what their employers cover, but if you do have a Life Insurance policy, provide that documentation as well.

Subsection E is where you document household goods and furnishings.
You don’t need to list every item acquired during the marriage. Include big ticket items. For instance, if you have a high definition 52” flat screen list that here. If you obtained a weight bench in 1996, it probably isn’t worth much now. So if you have a bunch of outdated items, just ball park what you could get for them at a garage sale.
The remaining portion of the financial affidavit addresses stocks, bonds, pensions, retirement and 401(k). Most people don’t have retirement accounts, but if you do, you will need to provide your attorney with your most current quarterly statement. Remember “equitable distribution”.

So, quick review here.
Paystubs
Tax Returns
Mortgage statement or rental agreement
Utility bills
Proof of out of pocket medical expenses
Statements for any debt that you have
Vehicle loan documentation
Bank statements
Life Insurance policy
Most current quarterly statements for retirement accounts

It might seem like a lot, but keep in mind, the sooner you disclose this information, the closer you are to finishing up your case.

August 27, 2009

Restraining Order vs. No Contact Order

>By THE GASPER LAW GROUP, PLLC

If you have read one of my other blogs, “A Package Deal,” you would know that many divorce cases come with several cases wrapped into one – domestic violence case, restraining order and then the divorce action. This article focuses on Restraining Orders.

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I normally advised clients to obtain a restraining order when they are concerned about harassment or threats of violence from their spouse. The restraining order can include the children of the marriage or anyone in the household that requires protection. Once you get the Temporary Restraining Order and have the spouse served, then the matter will be set for hearing. It is at this stage that I advise clients of the three options available.

The first option is to proceed forward with the restraining order hearing. There is no guarantee the restraining order would become permanent and this option is the only option where result are uncertain. Depending on the facts of the case, some clients have a better chance than others.

Option two is to continue the temporary restraining order and “wrap” it into the divorce proceeding. The restraining order hearing is continued for roughly ninety (90) days and not addressed by the court. Rather, the parties proceed with the divorce hearings and attempt to resolve the restraining order during the divorce proceeding. This sometimes results in the party seeking protection ultimately dismissing the restraining order. The other option may be that the party seeking protection has never been able to set aside their fears and the restraining order hearing proceeds as scheduled.

The final option is the crux of this blog – the No Contact Agreement. People assume the No Contact Agreement has no protections and is just a promise of the other party to not contact them. But the No Contact Agreement is much more than this. The penalties for violation are more severe than those for violation of a permanent restraining order. The penalties for violation of a no contact agreement include up to six months in jail.

So how does it work? The no contact agreement is a contract between the parties that is filed with the Court. The contract is usually filed in the “DR” case, as we like to call it, or family case to the lay person. If there is no “DR” case, then the document is filed in the restraining order case or criminal case, if one has been opened. The document is a binding contract that all parties must adhere to. Once the No Contact Agreement is approved by the Court, the restraining order is dismissed in its entirety.

The contract is usually reciprocal, although I have made it one-sided on occasion. Regardless of whether the document is reciprocal or one-sided, the agreement continues to “restrain” one or both parties from having any contact with each other. This include telephone contact, email, text messages and even Facebook or MySpace. The agreement will also include a prohibition from either party coming within 100 yards of each other, their home, school and place of employment or places frequented by the party (i.e. church, playgrounds where the children may play, etc…). Because it is a contract drafted by the attorneys and entered into between the parties, it can contain any provisions the parties desire so long as the provisions are not unconscionable (i.e. prohibition on the right to sue).

Just as with the restraining order, if a restrained party happens to run into the other party at, say, the grocery store, then the party last there or who recognizes the other party first, must leave the premises immediately. For example, say Jane and John have reciprocal No Contact Agreements. Jane is out having dinner at a restaurant, seated and having already ordered her meal, when John walks in the door. As soon as John recognizes that Jane is present, he must immediately lave the restaurant and have his dinner elsewhere.

So far, you can see that the No Contact Agreement is just like the Restraining Order. So how do the two differ? The two differ when it comes to penalties and enforcement.

If you had a restraining order and the restrained party came within 100 yards of you or telephoned you, you could dial 911 and have the restrained party arrested and/or cited for violation of a protection order. The report of the violation does not necessarily mean that the other party would be arrested. It depends on the circumstances. Even with an arrest, the restrained party would spend no more than a couple of days in jail waiting on bail (I say a couple because if the violation occurred on Friday evening, he may not be able to get in front of a judge until Monday morning, or Tuesday morning depending on holidays). The bail amount would be minimal almost guaranteeing a release. Regardless of whether the restrained party is arrested, the restrained party would certainly receive a summons for violation of a protection order and given a court date.

The above scenario would not happen with a No Contact Agreement. If the restrained party violated the no contact agreement, you could not call the police for assistance. You could call the police only if a criminal law were violated. But if the restrained party came within 100 yards of your residence, or telephoned you directly, calling the police would provide no assistance. They would be unable to do anything, unless of course the restrained party violated a criminal statute. This is the only drawback of the no contact agreement.

Continue reading "Restraining Order vs. No Contact Order" »

August 10, 2009

Defining a WIN in Divorce - "It's the Kids, Stupid!"

By THE GASPER LAW GROUP, PLLC

When I was asked by our Office Manager to do a blog about what is considered a “win” in a family law case, I had to chuckle to myself. You see, just a couple of hours earlier, I was engaged in a long conversation with one of the Judges next door about that exact topic. The judge and I were discussing what would constitute a “win.” She and I both concurred that, in a divorce case, there are no winners. If anything, everyone loses.

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Don’t get me wrong, a divorce case is the most traumatic and emotional situation anyone can find themselves. This is even more pronounced when children are involved. In most cases, you have two people who, at some point in time, fell in love with each other and committed themselves to a union. Children are later brought into this union. Then something goes wrong. Now you have two people, formerly in love with each other, who now hate each other more than they could have imagined. Clients will deny that they hate their former spouse, but the truth is, when someone you loved and trusted broke your heart or destroyed your trust, it’s hard to not have intense hatred towards that person. This emotion often clouds their judgment and rational thought, making every issue in a divorce case a contentious battle.

I see this all the time. Clients who dig their heels in and fight over the most ridiculous things – the bedroom set, statuettes, TV’s, photographs, you name it. The thing is, the client’s get so bogged down into fighting with their spouse over these mundane items that they lose sight of the true prize – the children.

The judge gave a great analogy to a divorce – it is like the dissolution of a partnership. You have two people who entered into a contract. They have purchased items together and brought in “employees” (i.e. children). A dispute arises and the partnership must dissolve. Not only does the partnership have to pay off its debts and liquidate its assets, it has to ensure their employees are taken care of. This is exactly what occurs during a divorce.

Continue reading "Defining a WIN in Divorce - "It's the Kids, Stupid!"" »

August 7, 2009

Filing for Divorce - "Race To The Finish"

By THE GASPER LAW GROUP, PLLC

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I have had clients come in and ask whether it is better for them to file a Petition for Dissolution first. Client frequently believe that it is important to be the first to file. When asked what position is better, I always answer, “It depends.”

If a party is having an extra-marital affair, is it better to file first and go on the offense to dispute the claim? If one party feels they can no longer reside with the other party, but want to continue to be a major part of their children lives, should they file first and leave the residence? If they leave the residence, would the other party claim desertion or abandonment?

First, Colorado is a no fault state. Whether a party has “cheated” on the other during the marriage is completely irrelevant. Courts do consider extra-marital affairs if one party has used marital funds in furtherance of the affair, i.e. buying hotel rooms, expensive dinners, fine clothes, spa treatments, etc.. If a party has used marital funds in furtherance of the affair, the other party may seek reimbursement of those funds as part of the dissolution decree. This may be beneficial in offsetting any maintenance that might be owed.

As for abandonment or desertion issues, the only time the courts consider such issues occurs when one party completely abandons their family, which constitutes failure to provide financial support or a home for the abandoned family. Otherwise, the courts do not consider abandonment just because a party has vacated the marital home due to marital discord.

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June 19, 2008

Pro Se Divorce: Why Bother With An Attorney?

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Robert R. Gray, Senior Paralegal and Office Administrator

"Divorce attorneys are expensive ... I bet I could save LOTS of money if I did my own divorce ... after all, my wife and I are on friendly terms. Of course, I would have a paralegal check out the paperwork, but at a fraction of the cost."

Just writing this brings up bad memories. That was me 15 years ago ... a pretty smart guy, Project Manager for a manufacturing company, college degreed and pretty competent with documents, etc. I saved at least $3000.00 by not hiring a lawyer! So far, so good.

Three years after the divorce, two of my children graduated from high school. They had stayed with me so they could get through school. Their mother moved out of state when we were divorced. It was OK, I didn't need her to pay child support for those kids that stayed with me! The day I recieved the notice that my wages were being garnished for $16,000.00 of back child support ... well ... that got my attention. I'll never forget the three little words my ex-wife said to me when I called her to ask why I was being charged child support for the children that had resided with me the past three years. Those three words ... "READ THE PAPERS"!

You guessed it ... somehow, some way, the Final Decree showed she had the children! Of course, I wasn't worried, all I would have to do is call the court and let them know of the mistake. Funny, they said the same three words ... "Read The Paper"!

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