Divorce Legal Resources

Hidden Costs of Divorce

In today’s economy many couples live paycheck to paycheck. In reality many families are supported by two incomes because one or both of the individuals are underemployed or in extreme cases one or both are unemployed and relying on some kind of assistance if available.

This economic hardship is often times becomes more than the marriage can handle and  divorce seems to be the only way to improve one’s living situation.  What couples fail to realize is there are many hidden costs to divorce.  In reality there are ways to fix a poor economic situation without divorce.

What is the first thing that happens when a couple decides to divorce; the establishment of a second household.  This second household could double the expenses of the individuals involved instead of cutting expenses, this increase could be devastating to both parties.

The second thing that happens is one or both of the individuals retain attorneys.  This is advisable and a very necessary expense, but one that takes couples by surprise.  The biggest eye opener is the hourly cost and retainer fees.

The most important thing to remember is that the debt the couples incur during their marriage does not go away just because they file for divorce.  The decisions that judges make, with the help of attorneys, is who is responsible for paying the debt and often times that debt is split between the parties.

Many couples come to court with the illusion that judges and attorneys can fix their financial problems.  This is simply not the case, judges cannot erase the debts incurred by couples and attorney’s fees just increase the financial burden on couples.

There are many reasons couples find themselves in dire financial situations during their marriage; these financial problems didn’t occur overnight and they can’t be fixed overnight.  Unfortunately financial hardship leads to other problems that tend to take the focus off the real issues and divorce seems to be the only way out.

If you find yourself facing a divorce take the time to sit down and put a pencil to the numbers and realize that things will be a struggle for some time after the signatures go on the paper.

 “Bad-Mouthing” the Other Parent During a Divorce 

During the struggles of a legal separation or a divorce, emotions are at their most extreme. For many it is the most dramatic and difficult experience they have experienced in their lives. Thus, as parents battle over property and parenting time, children can be thrust in the middle and used as a venting outlet.

Signing papers, and attending court dates can leave parents tired and weary. Parents may have a tendency to speak unkindly of, or bad-mouth the opposing parent, soon to be the “future ex.”  This is not only detrimental to the relationship of the child to both parents, but it is also a key determining factor when a court decides to award parenting time.

Many parents attempt to court favor with their children by belittling the other parent, as if the old practice of having the child sit on the stand and point to the parent they would like to live were still alive and well today. The fact is, in Douglas and in most counties in Colorado, minor children are almost never allowed to take the stand. Thus, any attempt to brain-wash or coach their children into negative thinking about the other parent can have significant negative effects on the children, and in the outcome of that parent’s case.

Additionally, children tend to view themselves as an equal 50/50 product of both parents. When one parent chooses to comment negatively about the opposing spouse, children often subconsciously assume the comment is slightly directed towards them. No matter the reasoning, divorcing parents should never use their children as ammunition or puppets for personal gain, and should refrain from demeaning the other spouse.

Parents and friends of divorcing couples, when a couple makes the difficult decision to consider the option of divorce, seeking legal counsel will most likely be a the next practical step in this process.  As you watch your friend or family member take this step, it will be normal to want to comfort them through this time of financial, emotional, and stressful time.  It is important to remember that it is not helpful and often extremely harmful to use words that affirm the opposing spouse’s flaws. It is important to remain objective and to protect the interest of the children who are struggling through this difficult process.

It may be more help to simply offer support, babysitting the children, physical presence, or acts of service. Beyond the simple legalities that can be taken care of by legal professionals, it is important to preserve the family’s wholeness as much as possible for those involved as they endure the severe personal stress created by these difficult times.

Finally, following the old rule of “if you can’t say anything nice, don’t say anything at all” may be the best practice when witnessing or participating in this process, and as always seek the advice of an attorney if you have legal questions.

 

Children Having Children and Parenting Time (Custody)

In the world we live in today teen pregnancy is a situation in which many young couples will find themselves.  This situation not only affects the couple but in many cases the parents of both children become involved. With parents and grandparents fighting for custody, the situation can spin out of control very quickly. Regardless of the circumstances of the pregnancy or the relationship of the couple, there are some things that need to be figured out quickly and early.

The absolute first thing to figure out, and this may be an awkward situation, is the paternity of the father. This will simplify other issues down the road.  Many young men will freely admit to being the father of a child, because they truly believe they are the father, only to discover later that this is not the case. Paternity tests are simple, relatively inexpensive, and can save everyone a lot of time and heartache later.

The next thing is to determine if the couple wants to keep the baby or pursue adoption alternatives. If the child is not placed for adoption and the young couple chooses not to stay together, then the issue of parenting time or “custody” will have to be determined and a court-ordered parenting plan will be put in place.  One example of a parenting plan might provide custody every-other weekend and a once-a-week visit for the non-custodial parent.

The determination of custody is also where grandparents can become highly involved. Even if a parent might not want custody of the baby, the grandparents of the child can petition the Court independently for custody of the child.

Once the paternity of the biological father has been established, and custody determined, the issue of child support has to be determined.  Child support laws vary by state but the bottom line is court-ordered child support is imperative.

Many young mothers will say, “We don’t need court-ordered child support because Johnny loves me and will never leave me or our baby!”  But the fact is these are young men and women, feelings and emotions change on a daily basis and the only way to ensure that the individual who has custody of the baby will receive some type of support is through a court order.

All of this court involvement, in an already volatile situation, may be overwhelming at first for everyone involved but, it is absolutely necessary to get the basics established for the well-being of the young parents, grandparents and especially the baby.

If you find yourself in this situation the advice I would give you is to retain a qualified family law attorney to help you navigate through the myriad of details to protect you and the best interests of your baby.

Colorado Criminal Defense Attorney Kevin Ellmann
Get your questions answered - call me for your free, 20 min phone consultation (303) 814-2600

What are the Grounds for Divorce in Colorado?

Colorado is a purely “no-fault” state which means courts won’t consider either spouse’s misconduct or fault (e.g., adultery or drug abuse) in deciding whether to grant the divorce, how to divide property, or whether to award alimony.

The only ground for divorce in Colorado is the “irretrievable breakdown” of the marriage. This just means that the couple can’t get along, and there is no chance for reconciliation.

Is There a Residency Requirement in Colorado?

Yes. Either spouse must live in Colorado for at least 90 days before filing a petition (legal paperwork) for divorce.

How is Property Divided at Divorce in Colorado?

Divorcing spouses can decide how to divide their property and confirm their agreements in a written document called a “separation agreement.” If spouses can’t agree, they’ll end up in court, and a judge will decide how to divide their property.

First, a court will set aside both spouses’ “separate property” which includes:

  • Property acquired before the marriage or after legal separation
  • Property acquired by gift or inheritance, and
  • Property excluded from the marital estate by a valid agreement between the sposues (e.g., an agreement that states the employee spouse will keep all stocks received through his or her employment).

Next, a court will deal with “marital property” which includes all other property acquired by either spouse after they were married but before separation. A court will divide the marital property between spouses in a way the court believes is fair, taking into account the following factors:

  • Each spouse’s contribution to the acquisition of marital property, including the contribution of a spouse as homemaker
  • The value of the property set aside to each spouse
  • The economic circumstances each spouse will face after the divorce, and any increases or decreases to the value of either spouse’s separate property during the marriage, or the use of any separate property for marital purposes.

Ending of Child Support and Common Confusion

Many non-custodial parents believe that when a child turns 18, they can stop paying child support, this is often not the case.  Of course laws vary by state as to when a parent can legally stop paying child support. Graduation from high school and ending child support may not necessarily go hand in hand.  There are some states for example that provide, that in divorce actions, the courts may order the non-custodial parent to continue child support payments until the age of 21. However most states require child support payments to continue until the child has graduated from high school up until the child turns 19.

Child support should not be confused with spousal support. One major difference is a waiver of the right to seek a modification of alimony is legally enforceable.  While a waiver of the right to seek a modification of child support is not, even if the waiver was given in exchange for a lump sum child support payment. Even if the parents enter into a legally binding contract regarding a lump sum child support payment, ultimately the final decision resides with the presiding judge who can decide to enforce or not to enforce a child support agreement.

In many divorce cases the ending of spousal support payments is used as a bargaining chip to try and influence the amount of child support paid.  Ex-spouses who are required to pay spousal support often feel that the payment of both child and spouse support will cause an undue financial hardship over the long term and will negotiate a lump sum payment or try and receive more property in the settlement.

If you find yourself in the midst of a divorce proceeding where spousal and child support payments are a part of the case you should consult a qualified family law attorney to assist you.  Laws differ greatly by state and are often times very complicated, the details of each case will very greatly.

The Correlation Between Divorce and Bankruptcy

Money is the number one stress factor in many relationships. Many times a couple that has money problems think the answer to their problems is divorce. Each spouse is likely to believe that the other is mostly responsible for the couple’s money problems.  One thing is true, you can divorce your spouse, but you can’t divorce the debts incurred during your marriage.

In a divorce both spouses are responsible for the debts incurred while they were married.  The divorce settlement will divide up the assets as well as the debts between the parties each one responsible for their part.  The divorce settlement is between the two individuals, it doesn’t bind the creditor, whose soul responsibility is to collect the debt from either one of them. If one party doesn’t pay his or her share of the debts, the creditor can come after the other for payment. If he or she files for bankruptcy after the divorce, the creditors will look to the other to satisfy those debts. Since financial problems are the root of many divorces, if one party files for bankruptcy it often drives the other to bankruptcy court as well.

If you are considering divorce for financial reasons it may make more sense for you and your spouse to file for bankruptcy before getting divorced. At least that way you will know where you really stand when it is time to divide the property and the debt.  In order for this to be successful you and your spouse need to be able to work together on a certain level. If your relationship has deteriorated to the point where you can’t communicate with each other, this option may not be for you.

If you and your ex spouse can’t come to some sort of agreement concerning bankruptcy before the divorce, you should take measures to protect yourself in the event your ex spouse files for bankruptcy.  The last thing that you want is to have bill collectors coming after you for the debts your ex spouse was supposed to pay.  You should discuss this with your attorney, they can give you options to protect yourself before this situation occurs.  Your attorney may suggest that you obtain a lien on some of your “ex’s” property to help make sure that you don’t get stuck paying his or her share of the debts.

Bankruptcy will not protect the parties from paying court ordered alimony or child support payments if ordered. These types of support aren’t dischargeable in a bankruptcy proceeding, so your ex will still be liable for these payments even if he or she does file for bankruptcy.

Colorado Criminal Defense Attorney Kevin Ellmann
Get your questions answered - call me for your free, 20 min phone consultation (303) 814-2600

Common Terms Used in a Divorce Case

The term, “simple divorce” is really a misnomer; a divorce may be one of the most complex legal processes that a person encounters in his or her lifetime.  It’s very simple to get married, as they say, but often very difficult and messy to end the marriage.  Knowing some of the basic terminology involved can help individuals navigate through the fog of divorce.

Petition for Divorce:

This is the document that the person who wants a divorce files with the court asking for a divorce. The more common term for this petition might be called a Petition for Dissolution of Marriage. This document will spell out what the person wants the court to do, (in this case grant a divorce).  The petition must also state the legal grounds for the divorce, as well as any factual support related to the request.

Temporary Order:

This is also sometimes called an Interim Order. This order will only last until a hearing, a final order is issued, or until some other specified event occurs. A very common temporary order that is issued is a temporary custody order, which will specify which parent has custody of the children pending a final custody determination. Another common temporary order issued in divorce cases is a support order which provides for one of the parties to a divorce to pay support to the other party, usually in the form of support for the children, alimony or both. A temporary restraining order is another type of order that may be issued.  This order is could be issued to prevent one or both of the parties to a divorce from disposing of property of the other party. The key thing with any temporary order or interim order is that the order is not permanent.

Community Property:

This can get very complicated especially in lengthy marriages or marriages where both parties acquired a lot of their own property before the marriage and then combined their property.  In community property states (your attorney can help you with this) property that is acquired by the husband and wife during their marriage belongs to both parties. Property that was owned by either spouse prior to the marriage is their separate property. Sounds simple enough, but if separate property becomes commingled with community property, for example, separate bank accounts that are combined into one can become community property.  A spouse can acquire separate property during their marriage if the property is given to that spouse as a gift or inheritance.

Equitable Distribution:

Many states require the fair distribution of property and debts acquired during the marriage. This means that both property and debts should be divided fairly, but this doesn’t mean equally 50/50.  There are worksheets and checklists available to help determine what is equal however, many factors figure into these calculations about what is fair including the length of the marriage and earning capacity of the parties.  Again your attorney is indispensible in this area.

Spousal Support:

This is sometimes called Alimony or Separate Maintenance Payments. If the court determines that one spouse has a legal obligation to provide for the support of the other spouse, it can order that alimony be paid to the spouse to whom support is owed.

Child Support:

Fortunately for the children involved in a divorce the legal obligation of both parents to support their children does not end with the divorce. The non-custodial parent will be ordered to pay child support to the custodial parent. If there is joint custody, the parent who has primary physical custody will receive child support from the other parent. Each There are child support calculators and checklists available to assist with these calculations.  In some cases these calculations can become very complicated enough so, that the federal government has provided some standard guidelines across all states to assist both parties in determining how much child support is to be provided.

Custody:

This refers to the person who will have responsibility for the child or children. It’s possible at times that the court may award sole custody to one of the parents.  More commonly however, many courts now award Joint Custody to both parents.  Joint custody refers to the fact that both parents continue to have an equal say in the upbringing of the child but, one of the parents is awarded primary physical custody. When a parent has primary physical custody the child will live with that parent and have visitation with the other parent. In addition joint custody could include the fact that the children will spend roughly the same amount of time with each parent in the respective households.

Visitation:

When one parent has primary physical custody of children of the marriage, the other parent is granted the right to visit the child on a regular basis. A visitation schedule is usually spelled out to avoid disagreements between the parents as to when visitation should take place.

Divorce is often very complicated by itself and can get more complicated when children and property are involved.  It is highly recommended that if you find yourself a party to a divorce case seek a well qualified attorney with knowledge of the family law statutes in your state.

How do courts in Colorado calculate child support?

Colorado, as well as all other states, has built its regulations based on the Federal Child Support Enforcement Act. CO and all other states have their individually tailored guidelines to calculate child support from parents, which is based on their adjusted expenses paired with income.

These rules or guidelines are very different when compared with others states. For example, some states may have an identical situation but may be treated completely different then that of a Colorado proceeding.

Some states have very strict guidelines, and don’t allow their judges much leeway, while other states may allow their judges consideration and leeway when setting an actual amount of child support to be paid or assigned.

Regardless of the state, most guidelines adhere to a common format that must be met in order to determine who pays, and how much. These factors include:

  • The custodial Parents income and needs
  • The ability to pay of the paying parent
  • All needs of the child — including education, day care, health insurance, and any special needs
  • Child’s standard of living before divorce.

Colorado courts will require both separating spouses to provide a statement of finance and all financial situations they are involved in before making any concrete decisions on payment or amount of child support.  This covers many items such as monthly financial income, expenses, debt, etc.

In Colorado, once the court has set the child support, it considers the child’s current standard of living and tries to maintain it with as less obstruction as possible post-divorce, as much as possible.

Although, the courts are aware of the difficulty of the situation, and maintaining two households that used to be joined in support for one, they strive to meet the goal of maintaining the original standard of living as much as possible. Of course in all cases, this is a goal, not a guarantee.

How To Select a Family Law Attorney?

Your family law attorney will guide you through divorce, child custody, child support proceedings, and other personal matters that involve your intimate relationships. Your attorney will respect and protect your privacy while discovering the best exit strategy for your particular circumstances during divorce proceedings. If your goals evolve during the process, your attorney will help you evaluate and achieve those goals.

When a marriage or relationship ends, there is often a great deal of stress and emotion. You want a family law attorney who will communicate with you, answer your questions, and explain court procedures ahead of time so that you understand what’s going to happen.

You want an attorney who gives you the personal attention it takes to listen to you carefully, to understand you and your goals, and to guide you through the difficult legal issues related to divorce and/or child custody.

When a divorcing couple has children, your family law attorney will be sensitive to the need for legal strategies that will protect a child’s right to feel safe and loved all through the process.

When you’re selecting a family law attorney, you’ll want to ask about the specific services you need. Does the attorney have experience in that matter?  Does the attorney seem like someone who is intelligent and who will stand by you and represent you aggressively?

Here are some of the services that you can ask about when you’re in the process of choosing a family law attorney.

Divorce-Related Issues:

  • Representing you during divorce proceedings
  • Protecting your interests when property and financial assets are distributed
  • Protecting your rights regarding spousal support, restraining orders, or issues that may arise after a divorce
  • Guiding you through marriage annulment or the dissolution of a civil union

Child-Related Issues:

  • Enforcing or modifying child support agreements
  • Protecting your rights during child custody, visitation, or guardianship disputes
  • Representing you during child-related disputes when the parents were not married
  • Defending a father’s rights after a divorce
  • Reviewing divorce judgments or parenting agreements to determine if changes or enforcement are needed
  • Protecting your rights when a child has been moved to another state
  • Representing you when there are disputes about contributions for college expenses for your child
  • Protecting grandparents’ rights
  • Representing your interests with paternity-related issues
  • Representing you during adoption proceedings

Other Family Law Issues:

  • Devising the best strategy for you to deal with domestic violence and abuse issues, including elder abuse
  • Helping you plan for the needs of the elderly and persons with disabilities
Colorado Criminal Defense Attorney Kevin Ellmann
Get your questions answered - call me for your free, 20 min phone consultation (303) 814-2600
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