I have a custody order from another state. Can it be enforced in Colorado?

Colorado has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), codified at C.R.S. 14-13-101, et seq. This law allows Colorado courts to register an out of state child custody determination. It is a simple process that requires a form that can be found on the judicial website, a filing fee, and certified copy of the child custody determination. If you have relocated to Colorado from out of state, it is important to register the applicable child custody order if you want Colorado courts to be able to quickly enforce the order. If you have questions about register an out-of-state order please contact our office to schedule a consultation with one of our attorneys.

 

Once the out-of-state order has been registered in Colorado, Colorado Courts can modify the out of state order, if one of the following is true:

 

  1. Colorado is the child’s home state, which means the child has lived here with a parent or acting parent for the six-month period immediately preceding the filing of a Colorado child custody action (or for the child’s life, if the child is less than six months old),
  2. Colorado was the child’s home state within six months prior to the filing of a custody action, and a parent/acting parent still lives in Colorado,
  3. No other state has jurisdiction, or the child’s home state has declined to exercise jurisdiction on the grounds that Colorado is a more convenient forum, and the child has a significant connection to Colorado,
  4. Colorado initially entered parenting orders (e.g. a Colorado divorce or paternity action), and either the child or one of the parents has lived in Colorado continuously since then, or
  5. Temporary emergency jurisdiction exists because the child is physically present in Colorado and has been abandoned or some other emergency, such as abuse, threatens the child.

Modifying an out of state order is a more complicated process, than registering an order, thus if you need an out-of-state order modified, particularly if it has not been registered in Colorado yet, you should consult an attorney before proceeding. The attorneys at Smith, Shellenberger, and Salazar, LLC would be happy to help you with that process.

How will the Court divide our property?

Colorado is a “marital” property state, which means that all property acquired during your marriage is considered joint property of both spouses, regardless of who earned the money or made a purchase.  C.R.S. 14-10-113. The only property that will be considered separate will be property acquired before the marriage and kept  separate, not comingled or mixed with marital property. Separate property also includes things purchased with separate property, however increases in value during the marriage are considered marital property.

Once all marital property is identified, the court will divide the marital property equitably. This does not mean that the division will be exactly equal, the court will consider a number of factors when dividing property, including:

  • each spouse’s contribution to the acquisition of marital property, including contributions as a homemaker,
  • who receives the family home,
  • increase or decrease in the value of a spouse’s separate property during the marriage,
  • use of separate property to satisfy marital expenses or debts
  • support awarded to one spouse

 

Debts acquired during the marriage are also marital property, regardless of who incurred the debt or for what purpose. Thus, keep in mind that your debts will also be divided equally unless they can be considered separate property. Separate debts are often difficult to determine. The court will determine whether the debt was acquired to benefit the marriage, for example educational loans can be joint debts if they were acquired during the marriage, and the spouse’s education benefited the marriage in increased income or other benefits.  However, such a determination is often subjective. If you believe you or your spouse may have significant separate debts you should consult an attorney.

Also remember that you are not allowed to “dissipate,” in other words, hide or get rid of, marital property once one party has filed a divorce petition. This is extremely important because to attempt to hide or eliminate marital property during a divorce is violation of a court order and therefore grounds for contempt. While you likely won’t go to jail for such a violation, the judge will take it into consideration during the court’s division of property, and you are much less likely to receive a favorable result.

Property division issues are often a great place to start negotiating a settlement. However, just because dividing property can seem like a simple numbers calculation, does not mean that it is not helpful to have a lawyer. Lawyers can help you understand what you might be entitled to under the law. A lawyer can also help you assess the value of different property or hire a professional to do so. Perhaps most importantly, an attorney can help you negotiate the best terms for you or represent your economic interests in a final hearing. Contact our office today if you want to discuss property division issues with one of our attorneys.

Will one party owe spousal support to the other? How is spousal support calculated?

Spousal support is the more modern term for alimony. In Colorado, the courts use the term maintenance, because the purpose of the statue is to provide a means for a spouse with less income to “maintain” more or less their standard of living from their marriage for a period of time, typically dependent on the duration of the marriage. C.R.S. 14-10-114. In determining maintenance, the court will consider a number of factors including, the parties’ standard of living before the marriage, the resources of the party seeking maintenance, the time necessary to gain education or training to increase their earning capacity, age of the spouses, the physical and emotional condition of the spouse seeking maintenance, and the other spouse’s ability to pay.

 

Like most aspects of Colorado family law, maintenance awards are not a punishment or reward for one parties’ behavior during the marriage or the divorce. Instead, the purpose is equal distribution of assets so that the parties can move on and eventually live entirely independently. Maintenance can be a complicated issue as it can be one of the more difficult aspects of a divorce to estimate precisely. This is because it is very dependent of on the judge’s exercise of discretion. This is also an area where spouses can have a fair amount of flexibility during settlement discussions. Thus, it is a great idea to consult an attorney about your prospects for either receiving or paying maintenance.

What can I do if I was falsely accused of domestic violence?

In emotionally charged situations, especially during divorce or child custody disputes, parties often raise unfounded allegations of domestic violence in an attempt to gain an advantage. While the Court disapproves of and even punishes parties for making such false claims; the severe nature of domestic violence claims and the deference courts have to give such claims means it is often very difficult to prove such claims are false. It is imperative that you at least consult an attorney if such allegations are made against you. Failing to adequately fight such claims could have a severe impact on your rights and even your liberty. If you find yourself in this situation, please contact our office to schedule a consultation as soon as possible.

I believe my child’s other parent is an immediate danger to my child. What can I do?

You can request that the court restrict that parents parenting time under C.R.S. 14-10-129(4). To make such a request you must file a motion alleging a child would be in imminent physical or emotional danger if the parent were allowed to exercise their parenting time. Upon the adequate allegation in your motion, the court will immediately restrict parenting time, to supervised parenting time, until it can hold a hearing on the motion, which must be conducted within 14 days.  At that time the court will require evidence that supports the allegations in the motion.

Remember that parenting-time is the right of both the parent and the child, so it is a very serious matter to restrict someone’s parenting time and courts do not take this decision lightly. Also if you are found to have filed such a motion frivolously, without grounds, the court can order attorney’s fees or even restrict your parenting time as a result. Thus, while urgent action is often required in these situations, it is a good idea to consult an attorney if possible, before filing a motion to restrict parenting time.

I’m about to married, how should I prepare?

Planning a wedding can be exciting and fun, but preparing for marriage is about more than a wedding. Perhaps you are attending church or personal marriage counseling sessions or a pre-marriage course. These are often helpful for couples planning their future. However, while planning for marriage it is also a good idea to contemplate the potential the marriage could result in divorce. This may seem unromantic or pessimistic, but it is something every couple should at least contemplate because contemplating this possibility can help you determine if a pre-nuptial agreement is right for you.  Pre-nuptial agreements are a particularly good idea if one or both parties enter the marriage with property or even debts that they want to ensure are not treated as martial property in a divorce. However, pre-nuptial agreements cannot address child custody and a court will treat any such provisions as void. Smith, Shellenberger, and Salazar LLC, can help you draft the appropriate agreement for your situation.

Also note that having a pre-nuptial agreement does not automatically mean it is enforceable, or that it applies to all the property your spouse claims it does in a divorce. If you believe that your pre-nuptial agreement might not be enforceable or have concerns about the enforcement of the agreement in an upcoming divorce you should consult an attorney as these are often difficult legal arguments to understand and to raise in court. If you have questions about the enforcement of a pre-nuptial agreement in an upcoming divorce please feel free to schedule a consultation with our attorneys.

 

What happens if my ex-spouse wants to move with our child?

Many people find that after a divorce they need to relocate out of state for work or personal reasons. Obviously such a move usually has a significant impact on the parties parenting plan. Because it has the potential to negatively impact the other parent’s relationship with the child the court has to balance the party with primary parenting time’s right to move with the other parent’s right to parenting time with their child.

When the majority parenting-time parent, or a parent with equally shared parenting time wishes to relocate with the child to a location that substantially changes the geographical ties between the child and the other parent, C.R.S. 14-10-129(1)(a)(II) dictates that parent seeking relocation must, give the other parent and the court notice including:

  1. Written notice of the intent to relocate,
  2. The location where the party intends to reside,
  3. The reason for the relocation, and
  4. A proposed revised parenting plan.

 

If the other parent is opposed to the relocation or the new parenting plan, that parent will file its opposition with the court. Regardless the court will hold a hearing on the relocation, to determine whether the relocation and parenting plan proposed are in the child’s best interest.

Pursuant C.R.S. 14-10-129(2)(c) the court considers a number of factors in a relocation hearing including:

  1. The reasons why the party wishes to relocate with the child;
  2. The reasons why the opposing party is objecting to the proposed relocation;
  3. The history and quality of each party’s relationship with the child since any previous parenting time order;
  4. The educational opportunities for the child at the existing location and at the proposed new location;
  5. The presence or absence of extended family at the existing location and at the proposed new location;
  6. Any advantages of the child remaining with the primary caregiver;
  7. The anticipated impact of the move on the child;
  8. Whether the court will be able to fashion a reasonable parenting time schedule if the change requested is permitted; and
  9. Any other relevant factors bearing on the best interests of the child.

What can I do to protect myself from domestic violence?

Whether you are married or not the best thing you can do to protect yourself from domestic violence is to leave the situation and contact local law enforcement as soon as possible. Law enforcement will make an arrest, if possible, for any complaint of domestic violence.  If the arrest is made an automatic criminal protection order will go into effect for at least 7 days. This criminal protection order will prevent the defendant from returning to the family home or having contact with the victim. In addition to the criminal protection order, you can also file a request for a civil protection order, which is discussed above here.

During the criminal process you may be assigned a victim’s advocate who can help explain the process to you. However, an attorney can help ensure that the District Attorney is adequately pursing your case and help you through the process of obtaining a civil protection order, as well as represent you in any subsequent divorce, child custody, or property dispute that might arise as a result of the domestic violence and protection orders. The attorneys at Smith, Shellenberger, and Salazar, LLC can represent you during this difficult time, and help ensure that you are safe and can live a healthy secure life after domestic violence.

I already have an allocation of parental responsibilities order. Can it be changed?

Colorado family law favors stability and permanence of determinations. Particularly, the legislature has determined that it is generally in the best interests of children and to the benefit of families and the court system, if it is not possible for parents to constantly lityigate custody issues.

 

For minor modifications, the court can change a parenting planif it is in the best interests of the child, however, the court will likely require parents to create a parenting plan that provides an avenue for them to resolve minor modification on their own. If a party wants to change the person a child resides with a majority of the time, there are more strict limits. For instance, a party can request such a modification once after permanent orders have been entered, after that no party can file a motion to modify the primary residential parent within two years of the previous modification, unless the party can show the child is in danger. C.R.S. 14-10-129(1.5).

 

Further pursuant to C.R.S. 14-10-129, if the requested modification would change the majority residential parent, a Colorado court can only grant the modification if new facts have arisen since the original decree, and:

  1. The parties agree to the modification,
  2. The child has been integrated into the moving party’s family with the consent of the other party,
  3. The majority residential parent is seeking to relocate with the children, or
  4. The present environment endangers the child’s physical health or significantly impairs the child’s emotional development, and the advantage of changing residence outweighs any harm such a change would cause.

 

Similarly, Colorado law discourages alterations to orders regarding decision-making responsibility. Thus, pursuant to C.R.S. 14-10-131, a Colorado court cannot modify decision-making responsibility absent a significant change in circumstances making the modification necessary to serve the best interests of the child. This may seem rather generic, but the court will only modify decision-making responsibility if:

  1. The parties agree to the modification,
  2. The child has been integrated into the requesting party’s family with the consent of the other party, and the integration warrants the change,
  3. There was a modification of parenting time which justifies the change,
  4. One party has consistently allowed the other to make unilateral decisions for the child, or
  5. The child is endangered by the current allocation of decision-making responsibility, and the advantage of changing residence outweighs any harm such a change would cause.

I was never formally married in a ceremony. Am I married?

You may be a party to a common law marriage.

A dispute over the existence of a common law marriage usually only arises at the end of a relationship. At that time, it is going to be up to the court to determine whether such a marriage existed. No Colorado law enumerates the requirements of a common law marriage, C.R.S. 14-2-104(3), enumerates the requirements for a Colorado marriage and states: “Nothing in this section shall be deemed to repeal or render invalid any otherwise valid common law marriage between one man and one woman.”

 

Thus, the courts will look to case law to determine the requirements for a common law marriage. Case law states that “A common law marriage is established by the mutual consent or agreement of the parties to be husband and wife, followed by a mutual and open assumption of a marital relationship.”  People v. Lucero, 747 P.2d 660 (Colo. 1987). This means the couple must:

  1. Cohabitate,
  2. Mutually agree to be married, and
  3. Openly hold themselves out to the public as married.

 

Each of these criteria can be demonstrated a number of different ways. A couple does not need to live together for a particular period of time, but the duration of the common law marriage can only be as long as the duration of the parties’ cohabitation. A couple does not need to put their agreement to be married in writing.  Further, openly holding each other out as married can vary from telling family friends you are spouses to filing joint taxes. As you can see, this means that all aspects of a common law marriage can be grounds for extensive litigation.

The diverse forms of evidence for these criteria and the many ways that people can attempt to prove an agreement and holding themselves out as married, often require extensive hearings if the parties do not agree on the existence or duration of a common law marriage. At such a hearing judges often require rather extensive evidence and uniformity of that evidence. Thus, if you believe you are part of a contested common law marriage, Smith, Shellenberger, and Salazar, LLC can be your advocate in navigating the difficult evidentiary and proof issues involved in a contested common law marriage.