THE REPRESENTATION YOU NEED IN ORDER TO PROTECT YOUR FAMILY
A history of crime could impact your child custody case in Colorado. All child custody matters boil down to one main consideration: what is in the best interest of the child. If a criminal record demonstrates to a judge that you may put your children at risk in any way, it could impact his or her decision on custody matters. With criminal charges pending against you, a judge may rule in the other spouse’s favor. Should the criminal courts dismiss the charges against you, however, you may be able to file a request to modify the custody order.
Your Criminal Record Will Be Part of a Divorce Trial
It is impossible to conceal your criminal past from a judge during a child custody trial. Your record is public and an important piece of your past in the eyes of the family courts. The best you can do is to seal your criminal record, which may be an option if the courts convicted you of a petty offense, minor violation or crime involving certain drugs. A sealed or expunged record could help your custody case by showing a judge you did not commit a major offense or completed probation.
If the criminal charges against you are still pending, a judge may wait to make a custody decision until the resolution of your criminal case. It is possible that a criminal courtroom will drop the charges against you or find you not guilty. In these cases, you may not have to worry as much about a criminal history impacting your child custody case. If, however, the criminal courts do not rule in your favor, a judge will consider your propensity toward crime when determining custody. If a custody case must proceed while criminal charges are still pending, it could hurt your odds of a positive outcome.
How a Judge Decides Custody in Colorado
The Colorado courts refer to child custody as parental responsibilities. Parental responsibilities include physical custody of the children and the right to make important life decisions for them, such as education and health care. It can also refer to visitation rights for a noncustodial parent and/or grandparents. Parental responsibility court decisions center on the standard of a child’s best interest.
- Each parent’s relationship with the child
- Children’s connections to the community
- Parents’ wishes
- Children’s wishes (in some cases, if children are old enough)
- Both parents’ abilities to care for children
A judge will rule according to what would be best for the children. Each parent’s character and habits are relevant in this consideration. A judge will hear testimony from character witnesses and review things such as each parent’s criminal record, history of domestic violence and drug or alcohol dependencies. Pending criminal charges may or may not impact your custody case depending on the identity of the victim, nature of the offense and whether it was your first encounter with the law.
Modifying Your Custody Order in Colorado
A pending charge is not a criminal conviction. If a judge has already decided against you in a custody matter, but the criminal justice system in Fort Collins drops the charges against you, you may be able to fight for a better outcome. A judge may agree to modify your custody order if doing so suits the best interests of the children. Receiving an order modification will take proving that your situation has significantly changed since the date of the first order; for example, dropped charges, an expunged record or the completion of your sentence.
A judge will still take your criminal history into account when deciding child custody. If you or your lawyer can convince that different custody or visitation rights are in the child’s best interest, however, the judge may agree to modify the original order. Hiring an attorney and staying out of legal trouble can optimize your odds of a positive parental responsibilities agreement, as can proving you can provide a safe and stable environment for your children.
Hiring a divorce lawyer and separating from spouse can come with many difficulties and concerns. In the eyes of the law, however, just four elements compromise the heart of your case. Whether you and your spouse are trying to work together for an uncontested divorce or you are already preparing for a trial, it is important to understand the four main matters at hand. Discussing these issues with your spouse could help you both agree on the terms of the split.
When you and your spouse divorce, the legal status of your properties change. What you used to jointly own may now be you or your spouse’s property. Each state has unique property division laws for divorce cases. Colorado is an equitable distribution state, rather than using the doctrine of community property. If the courts determine property division, they will do so in a way that is fair to both parties. Fair may not mean equal.
You and your spouse will first get the opportunity to decide how to divide property on your own. A judge will most likely sign off on a plan you both agree upon. If you cannot agree with your spouse, the matter may go to mediation or trial. If the issue goes before a judge, he or she will consider factors such as each spouse’s finances, child custody and property values while dividing assets and debts.
Colorado’s phrase for child custody is parental responsibilities. Two types of parental responsibilities exist: physical and legal. Physical responsibilities refer to custody and/or visitation rights, while legal responsibilities give a parent the right to make important life decisions on the child’s behalf. As with property division, the Colorado courts will first allow you and your spouse the opportunity to work out a parenting plan before interfering. A parenting plan should include a detailed schedule of parenting time and rules for decision-making.
If you and your spouse cannot agree on the terms of a parenting plan, the matter may go to trial. A custody battle could involve you and your spouse explaining to a judge why you are each the better fit for the allocation of parental responsibilities. A judge may also consider the opinion of the child if he or she is mature enough to have one. Then, the judge will rule according to the child’s best interest. A judge may look at issues such as each parent’s relationship with the child and which parent can provide the most stable living environment to allocate parental responsibilities.
Child support is separate from parental responsibilities. It refers to one parent’s financial responsibilities to children, often based on the custody arrangement. In most divorce cases involving child support, the courts will grant a support request in favor of the custodial spouse. The noncustodial parent will have to pay a certain amount to the custodial parent to fulfill his or her financial responsibilities to the child. The courts use child support as a way to maintain the child’s standard of living after a divorce, under the belief that a child should not have to suffer due to the actions of the parents. For more information, call an experienced Fort Collins child support lawyer today.
Spousal maintenance, or alimony, is a payment one spouse may have to make to the other, usually temporarily, to maintain the recipient’s standard of living. The Colorado courts may grant a request for spousal maintenance if an income disparity exists between the spouses. If one spouse gave up an education and career to raise a child, for example, the other spouse may have to pay spousal maintenance after a divorce. The courts may issue spousal maintenance temporarily during the divorce, and then order a more permanent setup post-divorce. Spousal maintenance usually persists until the recipient changes financial status or remarries.
Posted in Colorado Laws on June 29, 2019
In the midst of a tense and emotional divorce case, inadvisable events can sometimes occur. One spouse may make statements or allegations against the other during proceedings, including those which could be damaging and potentially defamatory. In such cases, you may seek to file a lawsuit for defamation against your spouse during the divorce.
When Can Someone File a Defamation Claim?
In general terms, a plaintiff may file a defamation claim because someone has made a statement about them which has caused them financial harm or damaged their reputation. Many cases link these effects so the plaintiff will suffer both.
Defamation may refer to statements made in print or online, communicated by other means, including verbally. Plaintiffs are commonly people who have a profession or career which relies on the strength of their reputation. These people file for damages they have sustained, or risk sustaining, due to the statements made.
In such a situation, a plaintiff may file legal proceedings against the person who made the statement, who will be the defendant in that case. Public figures may also be victims of defamation, but their public status makes it more difficult to pursue defamation compared to a private individual.
Defamation and Divorce
Many reasons exist why you may wish to file a lawsuit for defamation during a divorce. Your spouse may make a statement which you consider defamatory during the course of the divorce. This may also apply to other parties involved in the case, such as your child’s other parent or your spouse’s new partner.
As with all defamation cases, in divorce defamation, the burden of proof will be on the defendant. This means that the spouse who made the statement will need to prove that what they said was not defamatory.
Although specific exceptions relating to defamation law exist, it is often possible to file a lawsuit for defamation during a divorce. In such cases, the plaintiff may be eligible for monetary compensation from the defendant. They would then need to pay material damages such as court costs, attorney’s fees, lost wages, lost business, and pain and suffering. The court may also order the defendant to withdraw his or her statement.
What Does the Law Say in Colorado?
Under Colorado law, a defamatory statement is one which is:
- A statement made about an individual
- A false statement
- A statement of fact relating to an individual
- Published or broadcast, that is, communicated to a third party
- Resulted in material harm, or damages, to the plaintiff
- This could be financial loss, damage to reputation, or both.
- The exception to this is statements which are so harmful that they are inherently defamatory, or libel per se.
- Made with negligent disregard, at a minimum
In cases relating to a public figure or a matter of public concern, there must have been actual malice behind the statement.
Colorado previously had a criminal defamation statute. Under the statute, the state considered certain types of defamation a Class 6 felony under C.R.S. 18-13-105 in Colorado. However, Colorado repealed this statute in 2012.
When May a Defamation Claim Not Be Applicable?
However, statements will not be subject to a defamation claim in certain conditions. If someone makes a statement under legal privilege, then they may have protection under qualified immunity. This may apply to statements made during a divorce. Additionally, under Colo. Rev. Stat. 13-80-103(1)(a) plaintiffs must file civil defamation cases within one year of the date of injury.
Because of the complex nature of defamation claims relating to statements made in court, you should seek qualified legal advice before taking any action. A Colorado divorce attorney will be able to tell you if you have grounds for a case, and the best way to proceed.
Posted in Colorado Laws on June 20, 2019
Following a divorce, many costs associated with raising children may be disputed by former spouses. One of these is the cost of a private education for the child or children. Divorced parents often dispute this because one parent may feel that this is a necessity, and therefore the other parent should pay for it. The other parent may be refusing to pay for it because they believe a public-school education would be sufficient.
What Are Each Parent’s Legal Responsibilities?
When going through a divorce, it is common for things to become emotional, tense, and even combative. However, when children are involved, the parents must prioritize their children’s best interests. The divorce will affect these interests in a variety of ways – from where they will be living to the education they receive.
On a legal level, each parent will have specific responsibilities to ensure the welfare of their children. In Colorado, the law states that both parents share the cost of education and childcare after a divorce. As part of the divorce proceedings, the judge can make decisions to ensure the protection of the children’s wellbeing. They will also determine the financial level of responsibility of each parent.
How Are These Responsibilities Determined?
During a divorce, the court will determine which parent should pay to support the wellbeing of the child, and how much they will pay. The underlying premise is to ensure that the child has the same standard of living and level of welfare that they had before the dissolution of the marriage.
To do this they will consider several factors.
- The financial standing of both parents including income, savings and investments
- The child’s perceived standard of living had the marriage not ended in divorce
- Financial aid or scholarships relevant to the child’s education (if applicable)
- The child’s academic performance
The Payment of Private Education
When the judge determines what needs to happen (and who needs to pay) in order to look after the wellbeing of a child or children affected by a divorce, one of the aspects they consider will be education. Colorado Revised Statute 14-10-115 states that parents must share the cost of private elementary or secondary school to meet the particular educational needs of the child. Although the parents must share this cost, the statute mandates that their adjusted gross income determines the split.
The statute does not define particular educational needs, so this point is ultimately open to interpretation by the court. According to Colorado case law, it is often determined that child support should include private and secondary education if the child is currently attending private school. If that is the case, the court will generally mandate that this arrangement continues. As such, they will make sure that one of the parties pays the private education fees. It is also common that the court will order the allocation of money for the child’s college education.
Because Colorado statutes provide limited information on this subject, the courts make these determinations based largely on case law. A number of cases contribute to legal precedence on the payment of private education after a divorce.
In Drury v. Racer, 17 SW 3d 608 (Mo. App. E.D. 2000) the court considered a previous ruling to increase the father’s child support obligation to include private education costs. The court ruled that “a child’s educational need is a relevant factor that the trial court may consider in awarding child support.” The court further stated that “the decision to increase child support that requires noncustodial parent to pay a portion of private school tuition rests within the sound discretion of the trial court.”
Imputed income is a court-ordered income amount that may apply to child support cases in which one parent tries to escape financial responsibility by lying about his or her income level. The divorce courts in Fort Collins take child support orders very seriously. They will handle a parent that tries to act outside the system by imposing an imputed income amount on the child support decree. If you have specific questions about your assets or computing income, speak to a Fort Collins divorce lawyer today.
About Colorado Child Support Orders
The courts in Colorado may issue a child support order in a divorce case involving children. The purpose of a child support arrangement is to maintain the child’s quality of living after a divorce. The courts believe a child should not have to suffer a decrease in funds, food, clothing, etc. because of a divorce of the parents. To keep the child’s financial situation the same post-divorce, the courts may order a child support requirement to one spouse – typically, the non-custodial parent.
A parent with a child support order will have to pay the amount stated in the order until the month that a child out of high school turns 18, or until the month a full-time high school student turns 19. Parents have the option of working together to determine how much child support one spouse should pay. If they cannot agree on an amount, however, the courts will set child support payments. A judge will calculate the amount of child support based on the Income Shares Model, which looks at the gross incomes of both parents.
When Might the Courts Impute Income?
During a child support case in Colorado, it is up to both parents to accurately report their income to the courts. The courts will then use these incomes, plus information about what the family usually spends on the child, to assign the noncustodial parent’s share of support. A parent may try to cheat the child support system by reporting a lower income level than he or she actually earns. The parent might think that this will punish the parent by paying less. Since child support payments are for the child, however, and not the spouse, the courts will not allow a parent to get away with reporting an incorrect income.
If the courts discover that a parent is trying to shirk his or her child support responsibility by lying about income, they will assign an involuntary income amount to that parent. This is called imputed income. Imputed income may also be a necessity if a parent is intentionally avoiding work opportunities to remain unemployed or underemployed. To calculate imputed income, a judge will analyze the parent’s earning potential based on education, work experience, location, and other factors. Then, the judge will issue a child support order based off the imputed income, regardless of the parent’s actual income.
For example, if a parent was earning $100,000 a year, but then the year of the divorce switches to a job earning $50,000, a judge may assign an imputed income at the $100,000 salary level. The parent would then have to pay the amount based on $100,000, even if he or she has a job that pays $50,000. Each case is unique. A judge will assess the specific situation to make sure the parent in question actually has the ability to make more but is intentionally making less, or that the parent is covering up his or her actual income. Then, the judge will assign an imputed income amount he or she deems appropriate.
Even when both parties agree a divorce is their best interests, it can still be a challenging time. For couples in which one or both spouses are active duty military, divorce can be even more complicated. The way each state handles military divorce is different, and federal laws are also a consideration when a military marriage dissolves. The military lifestyle influences nearly every aspect of a divorce, from spousal support to custody.
In Colorado alone, over 47,000 men and women are active duty military. The rate of divorce among military personnel is about the same as the national average, though if the spouse in the military is female, rates are usually higher. Unfortunately, the stress of military life can put a strain on marriage. Long deployments, the emotional strain of solo parenting, and the effects of PTSD can all make married life difficult. When divorce is inevitable, military couples should discuss their situation with a firm that is experienced in divorce law for Colorado.
- How is a military divorce different than a civilian dissolution in Colorado?
- The 10-Year Rule in Military Divorce Cases
- What is the hunt/gallo formula?
- How do I determine what state to file my divorce in?
- How is income determined?
- Military Relocation and Child Custody
- How does Dual Military Divorce differ?
How Does Military Divorce Differ From Civilian Divorce?
Military divorce differs from civilian divorce in a few important ways. While the process for divorcing is essentially the same, military couples must consider a few other factors that civilian couples do not have to consider.
- Certain laws dictate the handling of military divorce that include more federal regulations.
- Many courts consider military benefits and retirement to be a divisible asset, so judges must take this into consideration.
- Military personnel often claim residency in a state other than the one where they reside. A couple may live in Colorado, but residency is in Florida or New York.
- Custody arrangements may not be traditional due to deployments.
Pensions and the 10/10 Rule
Couples married for at least 10 years during a period of active service benefit from the 10/10 rule. It is a statute that dictates the automatic payment to military spouses of their share of the military retirement pension. However, couples who are married less than 10 years during a period where one or both of them experienced active duty can also get shares of military retirement benefits; it just does not happen automatically. In that case, it may come from the spouse directly as spousal support.
Hunt/Gallo Formula for Retirement
The Hunt/Gallo formula determines the share of retirement pension the law entitles a former military spouse to have after a divorce. The courts determine this by taking the number of months of military service that occurred during marriage and dividing them by the total months that the military spouse served. The former spouse receives one-half of the marital portion calculated by the formula.
How to Determine Filing State
The first step in military-related divorce court is determining the correct court for hearing the case. Divorcing couples must prove they are residents of the state where they filed divorce. In Colorado, the law dictates that one or both of the spouses are a resident of the state for no less than 90 days. The couple proves residency in a few ways; a driver’s license, LES (Leave and Earnings) statements, a voter registration card, or proof of property all prove residency. It is legal to apply for residency with the sole purpose of filing for divorce, as long as one or both people achieve resident status at least 90 days before officially filing.
Extra allowances make up a large portion of military pay. Base pay is usually adequate for day-to-day expenses, partially because of additional allowances. Basic Allowance for Housing (BAH) covers housing, and Basic Allowance for Subsistence (BAS) covers many daily necessities. All these streams of financial support make up a military person’s true income. For that reason, the entirety of monthly allowances makes up divisible income in a divorce. The laws include VA benefits as income, as well, but do not regard them as marital assets.
Obligations of Military Members to Spousal Maintenance
In Colorado, the court has the authority to order missed spousal support or child support payments out of a service member’s paycheck, sending it directly to the spouse. Additionally, the military branches themselves have regulations in place that require personnel to support their families after a separation. A former spouse may also seek assistance from the commander, the local judge advocate general office, or the inspector general of the service member should they fail to meet their spousal maintenance obligations.
While this seems like enough to ensure he or she makes payments, it is still best practice to have a formal court order that clearly defines spousal and child support.
The Complications of Custody
In traditional divorces, a stereotype still survives that suggests the courts favor mothers – and this stereotype is made worse in military divorces since mothers tend to receive primary custody more often than fathers. Colorado does not favor mothers or fathers more often in custody cases, though military divorces may make it seem like they do. In military divorces, the overwhelming custody tends to fall to mothers; rather than due to gender or parenting bias, this is most likely because they are less likely to be the parent on active duty.
Every child custody case in Colorado is different, but the court statistically awards the stateside or non-military parent more custody, and this parent is usually the mother. The reasoning behind such decisions is that it is in the best interests of children to keep them in the same school with the same social and familial network. However, the court makes exceptions and modifications to custody agreements to allocate times of year where the active duty parent has primary custody. The courts base these agreements on the active duty spouse’s military schedule, as well as the children’s school schedule and location.
The service members’ Civil Relief Act (SCRA) allows service members to postpone or even suspend certain civil obligations while on deployment. This aids service members that are on active deployment or duty to pay full attention to their duties without causing additional problems for their family members at home.
Dual Military Divorce
One of the most complex types of martial dissolution is a divorce between two active military members with children. If both parents want primary custody and are having trouble agreeing on how it would work, the law requires a third party to mediate and make a parenting plan. In most cases, the resulting parenting plan allows both parents time to be the primary parent, depending on deployments. In some cases, two military parents can resolve custody disputes and create such a plan without a third party. Dual military divorce often requires more in the way of custody collaboration.
Talk to an Experienced Attorney
Call the Law Office of Stephen Vertucci, LLC at (970) 900-1800 today to schedule a consultation and get the peace of mind that comes with a skilled legal advocate who has your back.
Posted in Colorado Laws on August 30, 2018
Protection orders are invaluable to those they defend. When someone is in fear for his/her life or well-being, a protection order can provide much-needed peace of mind. Those who decide to disobey protective orders can face strict penalties, including jail time. If you’re interested in securing a protection order in Colorado, you must first understand which type of order is most appropriate for your situation. Two main types of protection orders are temporary and permanent.
Best Times for Temporary Protection Orders
The difference between a temporary and permanent protection order is not in the things it keeps someone else from doing. Both types protect a party from another party in all the same ways. Instead, the difference has to do with the amount of time in which the order is active. A temporary protection order is ideal in the face of immediate threats of danger. For example, if you have reason to believe someone is going to harm you or make good on a threat soon, a temporary protection order might be the right choice.
Temporary protection orders come through faster than permanent ones. Since they are for use in situations involving imminent threats where time is of the essence, the courts decide on these orders in a time-efficient manner. Typically, a judge will agree to hear a case involving a temporary protection order the very same day. This is important to victims of stalking, harassment, violence, and abuse who need fast protection from their perpetrators. In general, one must always get a temporary protection order prior to asking for a permanent one.
Temporary protection orders are just that – temporary. Temporary protection orders last 14 days on average. After the 14 days, the party requesting the order will need to return to court to request a permanent protection order, if necessary. The point of a temporary order is to immediately serve the needs of the petitioner, offering fast protection. It is not to provide a long-term solution. If the threat continues past the 14 days of the temporary order, the petitioner has the option to secure a more permanent form of protection.
Is a Permanent Protection Order Necessary?
Some bad situations don’t dissipate in two weeks. In these cases, permanent protection orders can be the best choice for people in dangerous circumstances. A permanent order will protect victims from all forms of contact from the offender for the foreseeable future. This includes in-person visits, phone calls, text messages, emails, and letters. Protection orders can also require offenders to give up child custody, leave a family home, give up a family care, make monthly support payments, and refrain from selling marital property.
Permanent protection orders are appropriate in situations in which the threat of harm will not fade in a matter of two weeks. If the criminal, domestic partner, stranger, or other party will most likely continue to threaten, stalk, or intimidate the victim, a permanent order can provide lasting protection and assurance. Although the courts can modify or lift permanent protection orders, they will only do so in limited circumstances. It is up to a judge just how long a permanent order will last.
To petition for a permanent protection order, one must go to the county courts and submit the proper application forms. The petitioner must then prove to the courts through a preponderance of evidence that he or she is in danger of future abuse or threats by the offender. The petitioner has the burden of proving the necessity of a permanent order rather than just a temporary one. A lawyer can help with this burden of proof, if necessary. If you’re in the midst of a criminal trial and wish to gain a temporary or permanent protection order from the perpetrator, your lawyer can help.