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.