THE REPRESENTATION YOU NEED IN ORDER TO PROTECT YOUR FAMILY
Posted in Divorce on January 28, 2019
The divorce rate across the United States has decreased by 18% over the last 10 years. In Colorado, the trend is similar; the state divorce rate is the lowest it has been in a decade. Despite lower numbers, however, the divorce rate in Colorado is still over 20,000 couples per year. While every couple has unique reasons for splitting up, studies show marked similarities in the top causes of divorce.
1) Extramarital Affairs
Infidelity is a major cause of divorce in the U.S. Extramarital affairs often lead to breakdowns of marriages, increasing discord between spouses — resulting in anger and resentment. Having an affair could stem from issues already within the marriage, such as lack of emotional or physical intimacy. However, the actual act of infidelity is more likely to drive a couple apart and lead to divorce or separation.
Instead of resolving issues or differences, an affair exacerbates existing issues and adds new, bigger ones. The strain of a physical or emotional affair can be too much for most relationships to withstand. Many individuals agree the affair of one spouse is something they find difficult to forgive or forget in a marriage.
2) Money Matters
If two spouses’ stances on money matters are at odds with one another, it increases the odds of fights and tension in the marriage. Disputes over spending, budgeting, and earning money can drive a wedge between a couple. Different financial goals or spending habits within a marriage could be enough to lead to a major power struggle and marriage breaking point. The stress of trying to juggle finances together may be too much for some couples, especially those with lower incomes. Statistics show a higher divorce rate among low-income couples.
3) Lack of Proper Communication
Thousands of couples name lack of communication as the cause of their divorces. Communication is key to a healthy and happy relationship. Open and honest communication with a spouse can show trust, respect, and deference to what the other spouse thinks and believes. Great communication can see a relationship through difficulties, while lack thereof could cause a simple argument to escalate into grounds for a divorce. Being able to talk about a sore subject and come to an agreement together could save a marriage.
Sometimes, love alone is not enough to save a marriage. A couple must learn how to sit down, express their feelings, and communicate effectively with one another. Communication problems are why many struggling couples turn to therapy as a last step before divorce. A therapist may be able to facilitate conversations that the couple cannot have unaided, probably from a history of poor communication.
4) Unrealistic Expectations
Some couples are destined for divorce from the very beginning. Too many people marry with unrealistic or lofty expectations of what marriage will be like. They do not anticipate the challenges or struggles they may encounter along the way. When problems do happen, these couples may not have the tools to effectively deal with them. Instead, they end up in front of a judge, asking for divorce. Unrealistic expectations of money, residence, careers, or a spouse could doom a marriage before it starts.
5) Lost Intimacy
Almost every relationship undergoes intimacy changes over time, but a total depletion of physical or emotional intimacy could result in a permanent split. Healthy relationships maintain intimacy as best they can, with both partners communicating their needs. While intimacy may change shape as a couple goes through life’s challenges, if it comes to a point where one or both people feel unappreciated or unloved, it may be time for divorce. Communication during a relationship about each spouse’s intimacy needs can help prevent this common cause of divorce.
Posted in Divorce on January 20, 2019
Alimony, called spousal maintenance in Colorado, is a court-ordered payment one spouse gives the other as part of a divorce or separation agreement. Typically, the spouse earning less income will receive the payments, while the one with greater income becomes the payer. Alimony is a guarantee in Colorado divorce cases where the combined gross annual income of the couple is under $75,000.
The point of alimony is to bridge the gap between two spouses with an income disparity, to ensure both enjoy the same standard of living they enjoyed while married. In Colorado, it is not to punish one spouse or the other. Furthermore, Colorado is a no-fault divorce state. This means it will not consider any evidence of one spouse’s fault for the divorce in determining settlement arrangements. An extramarital affair, for instance, will not affect alimony in Colorado.
Rules of Alimony in Colorado
Colorado has stricter alimony laws than in most other states. It is one of only a few states to make alimony decrees mandatory in certain divorce cases. In other states, alimony is never a guarantee, but rather contingent on the couple’s unique situation. Colorado has a presumption that most marriages involve an intermingling of both spouse’s economic lives. The Colorado General Assembly has concluded it is often impossible to separate the individual debts and contributions of each during a divorce case.
This presumption has led to the legislative declaration found in Section 14-10-114 of the Colorado Revised Statutes: if the combined income of a couple is less than $75,000, the courts must order temporary alimony. If over $75,000, it is up to the judge whether to make this order. Colorado’s unique alimony statute ensures a divorce proceeding does not leave one spouse impoverished. Once the temporary alimony order expires, the judge may decide to make it permanent.
Temporary alimony orders generally award spousal support equal to 40% of the higher earner’s income, minus 50% of the lower earner’s income. It is possible to receive a different order if evidence shows need for another amount. The temporary order will last as long as the judge commands, at which point a hearing will take place to determine the need for a permanent alimony order. Alimony typically lasts until the lower-earning spouse can acquire sufficient education or training for employment, or until that spouse remarries.
Colorado’s No-Fault Divorce Laws
In some states, each spouse’s actions during a marriage can determine the provisions of a divorce decree. If one spouse has an affair, for example, he or she could be at fault for the divorce and receive less than his or her spouse during property distribution. In Colorado, however, the courts do not care who is or is not at fault for the divorce. Section 14-10-113 of the law is clear: the courts will take many factors into account during property division decisions, but fault for the divorce is not one of them.
It does not matter if one spouse had an affair, or if this was the reason for the divorce. Adultery will not affect an alimony agreement in any way in Colorado. However, an affair could impact property division if the affair breached a prenuptial agreement or added debts to the marriage. If, for example, one spouse spent co-mingled money purchasing a hotel room during the affair, the cheating spouse could receive fewer assets because of the debt incurred.
Like alimony, having an affair also will not impact child custody or child support agreements in Colorado, unless the affair led to child neglect or abuse. If your spouse had an affair that ended your marriage, speak to a qualified local attorney about the possibility of it working in your favor during a divorce case. Although it will not have an impact on alimony, it could affect other aspects of your divorce case.
Posted in Divorce on December 17, 2018
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
- Dual Military Divorce
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. 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.
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.
Posted in Divorce on November 9, 2018
The idea of a “prenuptial agreement” inherently bothers many people because it can feel like preparing for a marriage to fail before it ever really starts. A prenuptial agreement essentially stipulates each spouse’s rights and obligations in a marriage, particularly when it comes to financial assets. Despite the fact that many people have traditionally found the idea of prenuptial agreements distasteful, the reality is that people with significant financial assets want security in the face of the unknown. It may be a good idea to write up a prenuptial agreement if you and your future spouse both have significant financial assets or one of you owns significantly more than the other.
- What does a prenup cover?
- Advantages of Prenuptial Agreements
- Disadvantages of Prenuptial Agreements
- Changing or Altering a Prenup
- Do I need legal representation?
What Does a Prenuptial Agreement Cover?
A prenuptial agreement establishes financial rights and ownership over the property and assets that a marrying couple brings into a marriage. Although it may feel awkward for a marrying couple to start planning for a divorce, the reality is that more than half of marriages in the United States result in divorce. More millennial couples are making prenuptial agreements than previous generations because, today, more people are waiting to marry later than their parents and grandparents.
Having a prenuptial agreement does not mean the couple intends to divorce. It is simply a “just in case” plan in the event the couple does decide to divorce. Instead of dealing with messy and time-consuming litigation to divide all of the couple’s property and assets, the divorcing couple can simply follow the prenuptial agreement and conclude the divorce quickly and simply.
Benefits of a Prenup
Although the idea of discussing what you and your future spouse will do in case of a divorce may sound strange, the reality is that the couple can enjoy peace of mind knowing that they have already covered the financial issues that may come up in a divorce. Married couples need to manage many financial issues together, and a prenuptial agreement can be the bedrock of a healthy and stable financial relationship between spouses.
A prenuptial agreement can also help preserve inheritances, family heirlooms, and family ties. For example, a soon-to-be groom decides to give his new wife his grandmother’s wedding ring that has passed through many generations of the family. If the couple develops a prenuptial agreement, the groom could stipulate that the wedding band returns to him in the event of a divorce. Without a prenuptial agreement, it’s possible that a judge could rule that the wedding band was a gift to the wife and is therefore her property. If there is any bad blood between the divorcing spouses, he may never see the ring again and lose a precious family heirloom.
Prenuptial agreements can also protect children from previous marriages. A parent can include specific protections that prevent the other spouse from taking property or money that essentially belongs to the parent’s children. A prenuptial agreement can also clearly lay out financial expectations before the wedding day so both spouses know exactly what to expect after marriage in terms of finances and personal property rights. Additionally, a prenuptial agreement is able to protect one spouse from the other’s previously accumulated debts and financial obligations.
What is quite possibly the biggest benefit of a prenuptial agreement is that if a divorce does happen it will proceed much more quickly than it would without a prenuptial agreement. Without such an agreement, a divorce can take months or even years to resolve, costing both parties significant legal fees and stress.
Potential Drawbacks and Disadvantages of Prenuptial Agreements
Despite the fact that a prenuptial agreement can be a great way to establish peace of mind and expectations before a marriage, it is still possible for a spouse to take grave offense at the suggestion of a prenuptial agreement. Many people unfortunately automatically assume that the suggestion of a prenuptial agreement indicates a lack of faith that the marriage will work.
Suggesting a prenuptial agreement isn’t exactly a romantic notion and may cause serious problems in the relationship. It’s also possible for one spouse to take such extreme offense that he or she calls off the marriage or ends the relationship entirely. If a person views a prenuptial agreement as planning the divorce before the wedding it can result in serious problems for the couple.
Another area of concern is potential interference with a prenuptial agreement. If one spouse hides assets from the other, coerces an agreement or forces the other spouse to agree to the prenuptial agreement under duress, the offending spouse could face significant legal penalties in addition to criminal fraud charges. Each spouse should have his or her own attorney for handling the prenuptial agreement to ensure things like this do not happen.
Changing or Altering a Prenuptial Agreement
Another benefit to prenuptial agreements is that they are essentially future-proof in several ways. They not only stipulate what each spouse’s financial rights and obligations are during and after the marriage, but the couple can also amend or alter their prenuptial agreement after marriage to account for changing circumstances.
For example, one spouse receives a major promotion that entails stock options. The couple’s prenuptial agreement never referenced anything about stock options because neither spouse owned any when they drew up the original agreement. After the promotion, the spouses and their attorneys can meet to amend the prenuptial agreement to account for this new development.
It’s also possible for certain life events to void a prenuptial agreement, such as the birth of children. In such an event, the couple can alter the effective dates of the prenuptial agreement and include new clauses that pertain to the couple’s children or other relevant changes.
How Can an Attorney Help?
Although a couple investigating a prenuptial agreement is going to marry, they are still drawing up an agreement that protects each of them individually. This means each spouse needs his or her own attorney to ensure the prenuptial agreement is as fair as possible to both parties. If there is any concern over elements of a prenuptial agreement, an experienced family law attorney is one of the best possible resources. Attorneys will also ensure that both spouses accurately disclose their required financial documents and proof of assets.
Ultimately, a prenuptial agreement is only advisable for couples who enter a marriage with significant financial assets, or in a marriage in which one has significantly more financial assets than the other. Such an agreement also enforces transparency between marrying spouses and can help build a foundation of trust in a new marriage.
Posted in Divorce on September 15, 2018
Divorce is never an easy subject to broach with children. Depending on the ages of your children, they may not fully understand what is happening until the living situation changes. It’s essential for divorcing parents to take time to talk about an impending divorce with their children and answer their questions. Taking the time to prepare your kids for a divorce can greatly decrease the chances of common coping behaviors like acting out, declining school performance, or destructive behaviors.
Every divorce is different. Perhaps you and your spouse simply no longer believe there is a reason to stay married, or your relationship strained to a breaking point and neither of you is willing to try and fix it. Regardless of whether any bad blood plays a role in your divorce, it is crucial for both parents to remain neutral in regard to their feelings about each other. This means you should never speak poorly about your ex in front of your children or attempt to manipulate your children’s relationships with your ex-spouse. Doing so will never work out positively for anyone involved and may actually lead to rifts between you and your children once they discover your interference.
If there are legitimate issues with your ex, such as addiction or criminal activity, you should be honest in your answers but refrain from giving your personal opinions. Older children will be able to make sense of these issues in their own way, but you should make it clear to your kids that they can come to you with their questions.
Be Open to Questions
Children, especially younger children, will have many questions about divorce. They will want to know why their parents are splitting up, whether they will need to move, when they will see their other parent, and may have seemingly endless questions and concerns. Remember, while you may know the intimate details about your divorce, your children do not, and they may not have any context to make sense of the situation. On the other hand, if your children have seen you and your spouse fighting constantly for a long time, they may actually feel relieved that you’re settling your differences so everyone can move on more happily.
Regardless of your personal feelings about your ex and the divorce, don’t neglect your children’s questions or allow them to frustrate you. Your children simply want to make sense of a situation that to them may feel like the end of the world. The more encouragement and support you can offer your kids through this time, the better things will work out for everyone involved.
Expect Some Pushback
Your kids may scream, cry, become angry, or start acting out once they learn about the impending divorce. Taking time to prepare for this conversation and being open to your children’s questions is the best way to smooth over these responses. It is common for younger children to display regressive behaviors like thumb sucking and bedwetting. Older children and teens may start acting out in school to vent their frustration or may get into trouble outside of school.
It’s best to approach these situations compassionately. Instead of punishing a child for wetting the bed after years of clean sheets, talk to him or her about what happened and see if your child is expressing his or her confusion about the divorce in other ways.
A family counselor can act as a great mediator and help facilitate discussions between you, your ex, and your children. If you’re having trouble explaining your divorce to your kids, a counselor may be able to offer guidance and tips for addressing the subject or may even suggest a family session to talk on neutral ground. Individual counseling may be beneficial if your children suffered any abuse from your ex or if they struggle with learning difficulties or other special needs.
Posted in Divorce on July 18, 2018
We increasingly live in a do-it-yourself society, which is great for things such as home improvement projects and crafting. You should leave some things, like legal matters, to the professionals, however. Plenty of research regarding DIY divorces exists, but you need an attorney to protect your rights and help you through the difficult process. The following are reasons you should hire an Fort Collins divorce attorney for your divorce, rather than taking a DIY approach.
Attorneys Are Familiar With Applicable State Law
The first reasoning behind hiring a divorce attorney is simple: They understand Colorado divorce law and how it may affect your situation. When you and your spouse decide to end a marriage, you must decide how to split your property, assets, and more. The issues of dissolving your marriage may be further complicated if you have children, significant assets, or own a business. Many people believe property is subject to equal division following a divorce, but the truth is much more complicated. In fact, one spouse may receive a significant amount of the marital property, depending on what the court views as equitable.
An attorney can help with the issues surrounding divorce, including equitable property division and child custody. For example, a lawyer can help you determine if you’re entitled to your spouse’s pension or retirement, as well as what is and what is not marital property. In many instances, a lack of legal knowledge can lead to an unfair outcome for one spouse.
A divorce attorney can help you understand both your rights and responsibilities when it comes to divorce. He or she can help you discover your claim to marital assets, insulate your personal assets from division if possible, and protect your business.
An Attorney Can Level the Playing Field
The scales are rarely even when it comes to dissolution of a marriage. One spouse often has a greater amount of power than another does when a marriage comes to an end. You can level the playing field and help ensure you’re doing everything to protect your rights in a divorce proceeding with a divorce attorney by your side.
You’ll be at a distinct disadvantage if your spouse has an attorney and you don’t. A family law attorney in your corner will help promote positions of equal power in a divorce proceeding. Some examples in which a family law attorney can provide valuable assistance include:
- If you’re a battered spouse, you can seek protection for yourself and your children.
- If your spouse has been hiding marital assets, an attorney can help uncover them and subject them to fair division.
- If you’re seeking physical custody, an attorney can help make your case.
You Can Prevent Serious Mistakes
The terms of a final divorce decree are legally binding. Many people, unfortunately, do not realize they’ve made a mistake or concession until a judge signs off on the divorce order. In this sense, you may be stuck with a provision of a divorce settlement that’s unfair or unrealistic.
You have the same rights and responsibilities under Colorado law as an attorney if you choose to represent yourself in a legal proceeding. Most of us wouldn’t practice medicine or perform surgery on ourselves, so why would we attempt to handle our own divorce? This significantly increases the likelihood of making serious mistakes that could affect your livelihood for years to come.
You need a divorce attorney for several reasons, including to leverage his or her knowledge of Colorado law; to protect your rights; and to assure the best possible outcome in your case. Rather than trying the DIY approach for your divorce, seek help from a Colorado divorce attorney.
Posted in Divorce on July 2, 2018
A divorce brings several considerations and points of contention for couples, such as division of assets and child custody arrangements. Couples may face additional complications when one spouse owns a business, or both parties own an enterprise jointly. If you’re a business owner facing divorce in Colorado, it’s essential to take certain steps to protect your business. Observe these tips to protect your investment and always consult a Fort Collins divorce attorney during a divorce to best protect your assets.
1. Arrange for a Prenuptial or Postnuptial Agreement
A prenuptial agreement is one of the simplest ways to protect your business before you enter into a marriage. The terms of a prenuptial agreement are enforceable, so you can effectively insulate your business from any asset division, should you file for divorce later. If you’re already married, a postnuptial agreement may be another viable option. Using either of these agreements will allow you to designate your business as separate property, which means your spouse won’t have access it to it in the event of a divorce.
Prenuptial and postnuptial agreements can have a bad reputation, because some people view them as “planning for divorce.” However, this is not the case. By taking care of important financial matters before you marry, you can eliminate some of the financial factors that put stress on a marriage in the first place. Having a prenuptial or postnuptial agreement provides an important source of insulation for business owners.
2. Put Your Business in a Trust
If you do not have a prenuptial or postnuptial agreement, consider putting your business in a trust. It serves the same essential function as the former, effectively turning your business into a separate asset. Should you ever face a divorce, your business will not be a marital asset subject to the Colorado laws of property division.
3. Maintain Full Control of Your Business Whenever Possible
When a divorce sneaks up on you or is otherwise unplanned, you stand to lose a portion of your business if you don’t know how to react. If maintaining 100% ownership of your business is a top priority, you may have to make sacrifices in order to achieve it. This means you may have to provide your spouse with other assets, such as the houses, cars, or other joint assets in order to maintain a 100% share.
Mediation can prove to be an effective method of dispute resolution when your spouse does not want to relinquish control of a business. With the help of both your attorneys and a neutral third party you can reach an agreement that will appeal to both of you – or at least, something you can live with, in exchange for full control of your business.
4. Avoid Litigation Whenever Possible
If dividing the business still proves to be a source of contention, take whatever steps are necessary to avoid taking the matter to court. Even if you started a business before you got married, the asset could become marital property if it experienced “commingling” – in other words, if your joint assets went into the business itself. If the courts discover any evidence of commingling, it will likely declare your business a joint asset and it will be subject to equitable and fair division. For this reason, it’s best to work these things out through other means, increasing the likelihood of keeping a 100% share of your business.
Maintaining full ownership of your business can be difficult, especially if joint assets went into the enterprise. On the other hand, if you plan ahead or you’re willing to make sacrifices, you can effectively insulate your business from your divorce proceeding. Prenuptial or postnuptial agreements are the best line of defense, but otherwise consider alternative dispute resolution methods like mediation.
Posted in Divorce on June 26, 2018
The end of a military marriage is very likely to be more complex than a typical divorce between civilians for a number of reasons. Many U.S. service members face lengthy deployment times, frequent relocation, and deal with a very complicated system of pay and benefits from the military. Regardless of what branch of the military you or your spouse serve, a military divorce is going to work very differently than a civilian one.
One unique aspect of military divorces is the division of BAH, or the military’s Basic Allowance for Housing. This is a unique benefit of serving in the military that covers the majority of a service member’s housing and utility costs when they reside outside of military housing. Each service member receives a different amount of BAH depending on their rank, post location, and how many dependents they have. Child custody is one of the most important factors determining BAH settlements in military divorces.
It’s important to remember that the government pays BAH to service members, not their spouses. After a divorce, the spouse who does not serve in the military will not receive BAH payments. However, if the non-serving spouse receives child support as a term of the divorce, BAH may partially fund the child support.
Speak to a child custody lawyer at the Law Offices of Stephen Vertucci today for more information.
BAH in Military Divorces
If an active duty service member does not have primary custody, he or she will likely need to pay child support. However, this can be very problematic for lower-paid service members. Once a service member no longer has any dependents and moves back into military housing, he or she will no longer receive BAH. However, the military uses a calculation method called BAH-DIFF to authorize BAH payments if the service member’s child support obligations are more than his or her BAH-DIFF rate.
An active duty service member with primary custody will receive BAH at the “with-dependent” rate unless he or she receives family-style military quarters. If two former spouses are both active duty service members, they cannot both receive BAH for the same dependent. If the former spouses share legal and physical custody of a child, each will receive BAH at the “with-dependent” rate as long as the child remains in the parent’s physical custody. Each parent may not receive housing allowances for children during that time.
Other Assets and Benefits Subject to Division in Divorce
Since the creation of the Uniform Services Former Spouse Protection Act (USFSPA) in 1982, all 50 states have since decreed that a military pension is communal or marital property in a marriage, and as such is subject to division in divorce. The Department of Defense will not make direct payments of retirement benefits to a military member’s ex-spouse unless they were married for at least ten years, with overlap with the service member’s time in service creditable to his or her retirement.
If the service member served for at least 20 years, the marriage lasted at least 20 years, and there was at least 20 years of overlap between the two, the ex-spouse of the service member will receive all military benefits and privileges. This extends to medical benefits, commissary access, and Base Exchange or Post Exchange access.
It’s important to remember that a state court can only pursue a ruling under the USFSPA if the service member’s primary residence is within the court’s jurisdiction. If not, the service member will need to give their consent to the court to pursue the ruling. If the service member does not consent, the other spouse will need to file in the court that has jurisdiction over the service member’s primary residence.
Survivor benefit plans, TRICARE, VA service and disability benefits, and other issues all come into play with military divorces, and it’s essential for service members facing divorce to connect with experienced military divorce attorneys to settle these affairs. See our Divorce FAQ’s for more information.
Posted in Divorce on June 21, 2018
A divorce can take a mental and emotional toll on everyone involved. Unsurprisingly, many couples who go through a divorce want the process over as soon as possible. While couples can do certain things to expedite the process, such as decide matters of child custody and asset division without litigation, Colorado sets certain time limits for a divorce proceeding. Learn about the divorce process and how long it takes an average couple to finalize a proceeding in Colorado from a Fort Collins divorce attorney.
Laws Surrounding Divorce in Colorado
The duration of a divorce proceeding varies widely depending on the circumstances. However, all divorces in Colorado have some key elements in common. For example, the initial steps of a divorce require a 90-day window. To begin a divorce proceeding, one spouse files a summons and petitions the court for the action, and the other spouse receives notice, or is served. After a spouse formally receives a petition for divorce, the couple must observe a minimum of 90 days before the courts will grant the request. In some cases, a couple may formally finalize a divorce and receive a decree in 91 days.
During this 90-day waiting period, other deadlines also apply. For example, each couple has 20 days from the initial filing to disclose financial information to the court. If either spouse neglects to provide financial disclosure within this time frame, the window extends to 40 days. Depending on the circumstances, the courts may grant other orders and provisions that could extend the divorce process.
At the shortest, a divorce in Colorado can take around 3 months to finalize. However, this applies to only the simplest of proceedings that do not involve children or other matters that could extend the proceeding. On average, a Colorado divorce takes closer to 6-12 months.
Factors Affecting Length of the Divorce Proceeding
A number of factors exist that might affect how long a divorce takes to finalize:
- The length of the marriage. Couples who have a long marriage typically have more shared assets, which could take more time to divide up.
- Minor children. Matters of child custody are often contentious and take time to settle by a Fort Collins child custody lawyer.
- The net worth of the spouses. Generally speaking, the higher net worth of the marriage, the longer a divorce will take to finalize. The exception is when both parties agree to a pre- or post-nuptial agreement.
- The amicability of the proceeding. If both parties agree the marriage is over, then it’s generally simpler to divide assets and finalize the process. However, if one spouse does not agree to the dissolution of marriage or infidelity preceded the filing, this could lead to more contention and delay the process.
How Couples Can Expedite the Process
A divorce can take a year or more to finalize, depending on the circumstances. However, couples can take certain steps to help the process along and finalize the divorce sooner:
- Avoid litigation if possible. The most contentious divorces end up in court, but many couples can avoid this by electing a form of Alternative Dispute Resolution, such as mediation. Using a neutral third party, couples can reach compromises involving custody, visitation, and asset division without waiting for a court date.
- Keep emotions out of it. Tempers can run high in a divorce proceeding, but they have no place in the negotiations. Withholding or refusing to compromise out of spite only lengthens the time until resolution.
A couple seeking divorce in Colorado can expect 3 to 12 or more months to finalize the process. On the other hand, each party can take action to expedite the proceeding as much as possible.
Posted in Divorce on June 14, 2018
Divorces are rarely simple or easy matters, and the first step in securing your divorce is often a difficult one: serving your soon-to-be ex-spouse divorce papers. After filing the necessary paperwork with the court to begin your case, the next step is serving your spouse a copy of the divorce paperwork. It’s vital to follow the appropriate steps for serving your spouse divorce papers, as doing so officially notifies him or her of the pending legal case and gives him or her the opportunity to respond.
There are several ways you can handle serving your spouse divorce papers. There is no best method, and some spouses will be agreeable to a divorce while others may contest it vehemently. It’s up to you to decide the best method for serving your spouse the required documentation. Consider your options for serving your spouse with divorce papers and choose whatever fits best in your situation.
It’s important to note that you cannot serve your spouse divorce papers personally. You may ask a relative over the age of 18 to handle the serving of papers, or you can employ a professional process server to handle the delivery. If you decide to have a professional process server deliver the divorce papers to your spouse, the server will need to officially document the delivery with the date, time, and place your spouse received the papers. Your spouse will need to sign this document. The process server will file this confirmation document with the court as evidence your spouse received the divorce papers.
Service by Mail
You can mail your spouse the divorce papers by Certified Mail or other mail carrier service that requires signature confirmation. If you mail your spouse divorce papers by First Class Mail, he or she will need to sign for the package. Certified Mail will require him or her to sign and send in a return receipt for the package.
Delivery to a Roommate
If your spouse lives with someone else, you can have the divorce papers delivered to the residence and given to a roommate or relative living in the same residence. You will need to provide the court with proof that the person who received the divorce papers in fact lives with your spouse.
If you have not succeeded in serving your spouse divorce papers at home, you are also allowed to attempt to serve them at your spouse’s place of employment, at a public location, or even on the street or in a coffee shop. However, you cannot leave divorce papers with a receptionist, secretary, or coworker at your spouse’s place of employment.
Published Notice of Divorce
If you cannot physically locate your spouse and all other attempts to serve him or her with divorce papers have proven fruitless, your last resort is a publication in a newspaper. The court must grant you special permission to do so and will typically require proof that other delivery methods have failed. Once you secure permission to do so, you can publish the divorce notification in a newspaper for a specified amount of time. You will need to provide the court with proof of publication as well as proof of how long the notice ran in the newspaper.
Divorce is a difficult subject, but it is one of the most common filings in the United States. If you are uncertain about any aspect of the process, a reliable family law attorney will be an excellent resource. The judge reviewing your case may also grant you special permissions depending on unique factors in your situation, such as an abusive or incarcerated partner. It’s also wise to work with an attorney throughout your divorce proceedings so you can reach a mutually agreeable divorce settlement with your ex-spouse.