THE REPRESENTATION YOU NEED IN ORDER TO PROTECT YOUR FAMILY
Annulment is not the same as divorce or separation. It is a plea for the courts to rule the marriage invalid rather than dissolving it – striking the marriage from the record as if it never happened. Some people choose to file for an annulment in Colorado instead of divorce for a simpler legal process and to avoid the negative stigma. Others do it for religious purposes. Annulment is only possible in Colorado if your marriage was never legal or valid in the first place.
Colorado Statutory Law on Annulment
Although Colorado does not have a statute specifically on annulment, it has a few that describe what it takes to invalidate a marriage. The most important, Colorado Revised Statute 14-10-111, defines what makes a marriage invalid in the State of Colorado. This statutory law on the declaration of invalidity states that a court in Colorado will find a marriage invalid if entered into under specific circumstances. It then lists seven different circumstances in which the state will not recognize a marriage as valid. Two additional laws – Section 14-10-110 and 18-6-301 – may also be important during an annulment case for defining a prohibited marriage and incest.
What Is Required to Get an Annulment in Colorado?
If you wish to get an annulment in Colorado, you will seek what is called a declaration of invalidity. This will effectively nullify your marriage. You must prove the invalidity of your marriage based on one of the circumstances listed in Statute 14-10-111.
- Lack of capacity. The inability to consent to a marriage based on issues such as lack of mental capacity or mental infirmity, as well as intoxicating drugs or substances.
- Impotency or failure to consummate. The failure to consummate a marriage within one year could give a spouse grounds to file for an annulment. The same is true if one spouse is impotent and the other party did not know this prior to marriage.
- Lack of age of majority. Both parties must be 18 in Colorado to legally consent to marriage, except with legal consent from parents or legal guardians.
- Fraud or misrepresentation. Some type of lie, scam or misrepresentation of fact by one party that led the other to marry.
- Marriage under duress. Threats, intimidation or another form of duress by a third party that forces one or both parties to enter the marriage.
- Jest or dare. A marriage entered into as a joke, jest or dare by one or both parties.
- Bigamy or incest. A prohibited marriage by law due to the couple being closely related (by half or whole blood) or one spouse already being married.
Proof of one of these circumstances may come in the form of witness testimony, documents, photographs, other materials or experts. You must have lived within the state for at least the prior 30 days to initiate an annulment proceeding in Colorado unless you got married in the state.
The Annulment Process in Colorado
If you qualify for a declaration of invalidity, you or your family law attorney will need to fill out and submit the appropriate forms to the family court in the county where you live. Act quickly, as a deadline to file may apply to your annulment request. You have just six months, for example, if you are filing due to lack of capacity to consent, fraud, duress or jest. Other reasons could give you one to two years to file. You or your lawyer may have to prove grounds for annulment using evidence. If successful, your marital status will change from married to single, not divorced. The annulment will declare that you were never married, as your marriage was never valid.
Talk to an Expert Attorney
A successful declaration of invalidity could free you from a fraudulent or invalid marriage. Speak to an annulment attorney in Fort Collins if you wish to pursue this course of action. A lawyer can help you navigate the state’s related laws and protect your rights as you seek a declaration of invalidity from the family law courts in Colorado.
The COVID-19/coronavirus pandemic has created different challenges for different people. The virus has affected families and individuals in unique ways based on their jobs, living situations and legal matters. Divorced couples, for example, may encounter issues related to their government-issued stimulus checks. On March 26, 2020, the Senate approved a $2 trillion stimulus package granting $1,200 per adult and $500 per child in economic impact payments. As someone who is divorced or in the middle of a divorce, learn how your familial situation could affect your stimulus check.
Who Gets the Settlement Check in a Pending Divorce Case?
The U.S. Treasury is using American citizens’ direct deposit information from the Internal Revenue Service (IRS) to distribute stimulus checks. If the IRS has a bank account on file for your family from the last time you did your taxes (for 2018 or 2019), this is the account that will receive the stimulus check. If the IRS does not have a bank account on file for you, it will send your household a check instead.
If you and your spouse still share a joint account while your divorce case is pending, you may divide the stimulus check yourself equally. If, however, one of you took over the account that used to be your joint account, that person could receive the full value of the stimulus check. Your ex-spouse may hand over your portion of the check if you ask. Otherwise, be sure to list the lost stimulus payment as part of what your spouse owes you during the division of your marital assets.
Notify the IRS of the update to your filing status right away if you have not yet received your stimulus check. It might not be too late to tell the IRS about your divorce or separation and receive a separate stimulus check. Change your filing status through the IRS.gov website. Then, submit your 2019 taxes – filing as separated or single – as soon as possible if you have not already done so. Updating your filing status could help you avoid your ex-spouse receiving your stimulus check.
How Are the Payments for Children Allocated to Co-Parents?
Through the stimulus package, each household with children who were under the age of 17 as of the 2019 tax filing season will receive an additional $500 per child. Unfortunately, both co-parents will not receive $500 each. Each couple will only receive one $500 payment per child, delivered into the account of the parent with physical custody of the child, in most cases.
The parent who will receive the $500 child stipend is the one who listed the child as a dependent on his or her last tax return. If the wrong parent received the $500 payment for childcare, you will hopefully be able to work it out with your spouse. If not, you may take the matter to court electronically or via mail in Larimer County.
How Can Child Custody or Support Be Impacted?
COVID-19 may create cause for concern for many parents over the safety of their children as they travel from one household to the other. In most cases, parents can work out a temporary arrangement that is in the child’s best interests, such as skipping in-person visits and making them up at a later date, or continuing with the normal agreement with extra safety precautions. With a new temporary agreement, parents should submit the request to a judge to make it official. It is against the law for one parent to withhold custody from another parent, even during COVID-19.
COVID-19 also does not automatically release a parent from his or her child support responsibility. If the coronavirus has impacted a parent’s ability to work, resulting in a lack of funds to keep up with child support payments, it is that parent’s responsibility to submit a child support modification request to the courts. If a parent is behind in child support payments, the government may seize or garnish that person’s stimulus check to pay off the debt owed. For more information regarding the stimulus check and your particular situation, speak to a family law attorney near you.
The coronavirus/COVID-19 pandemic has had far-reaching implications. It has affected most aspects of life…including marriage and divorce. Couples quarantining together have given rise to speculation of divorce rates increasing, while couples in the middle of divorces are wondering how the virus will affect their cases. Take a look at how the coronavirus has affected divorce for an idea of what to expect.
Is COVID-19 Leading to Higher Divorce Rates?
Several news reports from around the world have confirmed what many divorce lawyers have suspected: lockdowns, self-isolation and quarantine have strained marriages past the point of reconciliation for thousands of couples. One article from the New York Post quotes lawyers from NYC confirming an uptick in the number of divorce cases related to COVID-19, while another from Business Insider reports a spike in divorce cases filed in Xi’an, China upon the lift of its mandatory lockdown.
Divorce lawyers and relationship experts speculate that the rise in divorce petitions has a few different reasons. Couples that might normally have spent more time apart are now stuck with each other for weeks, leading to an increase in stress, frustration and fights. Co-parenting while the family is quarantined may also present new challenges or issues that parents may be unable to overcome. Some couples were already on the brink of divorce, only to have issues related to the coronavirus finally push them past the breaking point. Financial problems connected to job losses are also adding to marital stress and an increase in divorce rates.
How Has the Coronavirus Changed the Divorce Process?
On top of increasing the number of divorces, the coronavirus has also altered the legal process. Most courtrooms in Colorado have temporarily closed or significantly reduced the number of cases accepted, leading to longer wait times than usual for a couple to have a judge hear a divorce case. If your divorce requires a trial, you will most likely have to wait until your county lifts its social distancing requirements and the courts are back in regular session to complete your divorce case.
If you can work out a divorce settlement agreement with your spouse, however, it might be possible to get a divorce without going to court. Some courts have implemented technologies to allow couples to file documents electronically and attend court sessions via videoconferencing. Most divorce lawyers in Colorado are also offering telephone consultations, online document collection and e-signatures on legal documents to help initiate and/or complete divorce proceedings virtually. Many judges are ruling on petitions remotely to finalize them. Ask an attorney if it will be possible to file for divorce or continue a case you filed before COVID-19.
Can I Start Divorce Mediation Now?
The pandemic might have a significant impact on your divorce timeline depending on the circumstances. Many couples trying to divorce during the COVID-19 pandemic are receiving notices from their lawyers explaining that they will have to wait until the country lifts its social distancing regulations to file or continue a case. Others, however, are having good luck with telecommunications and virtual proceedings. Each case and county are unique. Call a lawyer in your county to find out if you and your spouse can start divorce mediation now.
How Will This Affect My Children?
The coronavirus might impact child custody by making it impossible or unsafe for co-parents to take turns with the kids according to their custody agreements. It might be necessary for you and your spouse to work out a temporary custody modification to accommodate social distancing or quarantine requirements. Make sure you do this with help from a lawyer rather than making a verbal agreement. The same is true if you need to modify a child support agreement. If you lost your job because of COVID-19 and can no longer pay child support, contact a lawyer to submit an official modification request. Working closely with a lawyer during this unprecedented and uncertain time can help you get trusted answers to your questions.
Posted in Family Law on November 18, 2019
Physical abuse is not the only type that could cause irrevocable harm to your relationship. Emotional, mental and verbal abuse can just as easily cause a permanent rift. Abuse of any kind could greatly impact your marriage. It may be the reason you file for divorce in Colorado. If you are suffering verbal and/or emotional abuse and wish to divorce your spouse, take the following steps to do so safely and effectively.
Document Your Experience
Although Colorado is a no-fault state, meaning you will not have to prove your spouse is verbally or emotionally abusive, documenting what is happening could help you in other ways. If the nonphysical abuse turns violent, for example, you will have proof to show the police during a criminal case against your spouse. Even if your partner never gets physically violent, documenting incidents of nonphysical abuse could be helpful. Proof of abuse may show a judge, for example, that your spouse is not a sound parent during a divorce case. Never put your safety or that of your loved ones at risk, however, in trying to get proof of abuse.
The most important thing to do as the victim of verbal or emotional abuse is to talk to someone you can trust for assistance out of your situation. Call a national hotline such as 1 (800) 799-7233 if you have no trusted friends or family members who can help. A representative can walk you through the steps of safely getting out of your abusive relationship. If your spouse becomes physically violent, take immediate action. Call the police, if necessary, to protect yourself. You can also contact a domestic violence relief center near you for advice and/or safe shelter.
File for Divorce
If you wish to leave your verbally or emotionally abusive spouse, file for divorce in Colorado. You must cite an irretrievably broken marriage for the courts to hear your divorce petition. If your spouse assents that your marriage is irretrievably broken, the courts will grant the divorce petition. If your spouse does not respond, the courts will take it as assent. Should your spouse refute that the marriage is irretrievably broken, your lawyer may be able to help you prove otherwise, with or without a trial. It will be your spouse’s burden to challenge your assertion with evidence. A lawyer can defend your stance to help you proceed with a divorce.
Navigate the Elements of Your Divorce
Verbal and emotional abuse may impact your Colorado divorce case. Even though you cannot list it as the reason for your split, the courts may still take any type of abuse into consideration when making decisions about marital property, child custody, child support, and alimony. Despite Colorado’s no-fault laws, verbal or emotional abuse could impact elements of your case.
- Child custody. The standard a judge will use when deciding child custody is the child’s best interests. A judge will consider one parent’s history of verbal or emotional abuse when determining what is best for the child in a custody matter.
- Marital property. If abuse contributed to issues such as your being unable to keep a job, this could lead to a judge awarding you the greater share of marital assets. Colorado is an equitable distribution state, meaning the courts will decide what is fair for each spouse according to the situation.
Child custody is the greatest area of a divorce verbal or emotional abuse can affect. Proof that your spouse abused you in any way could convince a judge to rule in your favor during a custody battle. A child support lawyer could also help lead to a child support order if you receive primary custody of your child. A lawyer can help you work through all the aspects of your divorce case, including navigating how verbal or emotional abuse might affect things.
Posted in Family Law on September 1, 2019
When most people think about domestic violence, they imagine one partner physically abusing another member of the household. While this tragic situation occurs all too often, it is not the only form of domestic violence. Nonphysical domestic violence can be just as harmful to victims. Nonphysical violence, abuse and harassment can harm a person mentally, emotionally and psychologically. Nonphysical domestic violence is still just as much a crime as physical violence in Colorado. Survivors may still call the police about nonphysical domestic violence, and perpetrators can face criminal charges. Learn what constitutes nonphysical domestic violence to understand your rights.
Colorado’s Definition of Domestic Violence Is Broad
Each state has its own statute defining the crime of domestic violence. Colorado Code §18-6-800.3 says domestic violence is an act or threatened act of violence between a perpetrator and victim who are in an intimate relationship. A threatened act of violence does not necessarily have to be physical. In the eyes of the law, violence or threats of violence can be verbal, mental or emotional. Any act that places the victim in fear of his or her safety, or the safety of a family member or pet, can constitute domestic violence.
Nonphysical domestic violence can lead to criminal convictions and penalties just like physical violence in Colorado. The sentence for a conviction could include fines, jail time, probation and mandatory treatment programs. Survivors of nonphysical domestic violence may also apply for protective orders against the perpetrator. A protective order such as a restraining order could prevent the offender from contacting or seeing the victim and his or her family for a specific period. This could help protect the victim from physical and/or nonphysical abuse.
Types of Nonphysical Domestic Violence
Colorado does not restrict its definition of domestic violence or abuse to only physical injury or assault. While kicking, punching, slapping or sexual abuse can constitute domestic violence, so can many nonphysical acts. If a nonphysical act between two people in an intimate relationship inflicts mental harm, psychological trauma or emotional distress on the victim, it could fulfill the legal definition of domestic violence. Several nonphysical acts could be domestic violence according to the state’s definition.
- Verbal threats
- Identity theft
- Emotional abuse
- Financial abuse
- Disturbing the peace
- Destroying property
An abuser does not have to lay a hand on the victim for the courts to convict him or her of domestic violence. Any nonphysical act that causes the victim distress, emotional harm or economic losses (including loss of job) could be a crime. Domestic violence does not only have to target the victim. In Colorado, a domestic partner threatening or committing a crime against the victim’s property, pet or child could also constitute domestic violence.
Do You Have a Case?
If your spouse, domestic partner or another person in your household is guilty of yelling, screaming, belittling, humiliating, stalking or otherwise harassing you, he or she could face charges for domestic violence. The same is true if someone in your household made you feel a real fear of imminent bodily injury or death to you, a loved one or a pet. Even without any physical injuries, you could have a case against someone for domestic violence in Colorado.
Call the police if you believe someone is guilty of domestic violence in your household. Realize, however, that once you call 911, the case will be out of your hands. The law enforcement officers and the prosecutors will be the ones who decide whether to press charges, regardless of whether you want to proceed with the case. Your lack of cooperation during a criminal investigation, however, could lead to the courts dismissing the case. Colorado has resources available for victims and survivors of domestic violence, including nonphysical domestic violence. If you have been a victim of domestic violence, consider hiring a divorce lawyer in Fort Collins and contacting authorities.
Dealing with a divorce can be difficult for any family. As a stay-at-home mom, however, you may worry more than most about what your life might look like post-divorce. You may have forfeited an education or career to care for children, relying on your spouse for financial support. Now, you may lose this support, on top of dealing with expensive divorce fees and court costs. Luckily, Colorado law looks out for stay-at-home moms and other divorcees in financial binds.
The Right to Hire an Attorney
If you have a complicated divorce, hire an attorney to help you work through your case. As a stay-at-home mom, your divorce case will most likely involve complicated matters that deserve legal attention, such as spousal support and child custody. A Fort Collins family lawyer can protect your rights from the beginning, taking over communications with your ex-spouse and his or her attorney. If you cannot afford to hire a lawyer, ask about including your legal fees as part of a divorce settlement. Many lawyers will work with you to arrange a payment plan that works for your family.
The Right to Fight for Primary Custody
The courts in Colorado will not automatically award you child custody, even as the stay-at-home parent. However, this fact will most likely work in your favor during custody negotiations. First, you and your spouse will have the opportunity to work together to create your own parenting plan. This plan will include custody, parenting time and parental responsibilities. If you can, work with your spouse during mediation to compromise on child custody matters. That way, you can both avoid surprises that may occur if your case goes to court.
If you and your spouse cannot work out a custody arrangement, use an attorney to help you fight for primary custody. An attorney can help you prove to a judge that you are the right choice with evidence such as your close relationship with the children, your role as the primary caregiver, their emotional bond to you and other factors. Your children will not have a say in custody unless they are old enough to give their opinion. In that case, a judge may consider what your children have to say. Ultimately, the judge will rule on a custody matter based on the best interests of your children.
The Right to Seek Child Support
As a stay-at-home mom, you will most likely be eligible for a child support order if the courts grant you primary custody. Colorado’s child support laws offer money in monthly installments or lump sums to help the primary parent pay for the care and support of children. Your spouse may owe you child support based on both parties’ incomes, education, jobs and parental rights. The courts may award child support if it is reasonably necessary to give children the same quality of life they had before the divorce. A child support order will typically last until the child turns 18 unless the child is still in high school or has a disability.
The Right to Request Spousal Support
Spousal support, or spousal maintenance, is a monetary award the courts may grant one spouse in circumstances of financial need. Spousal support is not a guarantee, even as a stay-at-home mom with little to no income. A judge in Colorado will only award spousal support if you exhibit financial need and if your ex-spouse has the means to pay the award. The amount and duration of the award, if any, will depend on your situation.
Colorado law uses the length of the marriage to determine how long spousal support will last. The law has a long list outlining how many months a spouse may receive support. For a marriage lasting 5 years, for example, the support order will last 21 months. The longer your marriage, the longer you could receive spousal support. You should use the months in which you receive spousal maintenance to get an education or job training that will help you find a position to support yourself and your children on your own. An experienced and local lawyer could maximize your odds of gaining spousal support during a divorce case.
Posted in Family Law on June 10, 2019
Colorado is one of 12 states which recognize common law marriage as legal and binding. This is a form of marriage which does not require a license or a formal ceremony, but in which both parties mutually consent to be man and wife. This legal status grants both members of the couple certain rights and responsibilities.
What Does Common Law Marriage Mean?
A common law marriage is the same as any other legal marriage, but without obtaining a marriage license and having a formal ceremony. Common law marriage has the same status as any other form of marriage in Colorado, the main difference being that the couple may find it more difficult to prove their marriage.
Common law marriage is recognized in Colorado under C.R.S. 14-2-109.5, which sets out a limited number of requirements, namely, that each party is eighteen or older, and that the marriage is permissible under statute C.R.S. 14-2-110 – that is it is not subject to bigamy or incest.
Those who are between 16 and 18 years of age may obtain common law marriage with consent from a parent or guardian. However, a number of other requirements for common law marriage have been set by legal precedent in Colorado’s courts.
Pre-Requisites for Common Law Marriage in Colorado
Certain set requirements exist for a relationship to be a common law marriage in Colorado. Some people believe that simply living with someone for a certain period of time will suffice, but it is more complicated than that.
In addition to the two requirements set out under C.R.S. 14-2-109.5, the two parties must live together. No set minimum time exists for cohabitation. Importantly, there must also be a mutual agreement that the couple wishes to be married, with evidence of that agreement.
How Common Law Marriage Is Determined
In order to establish a common law marriage, you have a burden of proof to show that it exists. In other words, a common law marriage is not an assumption, but rather the parties must prove it is a marriage. This can be complicated to prove that a mutual agreement to marry exists, as this agreement is not generally in writing.
Legal precedent in Colorado also shows that certain factors may be thought of as evidence of a common law marriage:
- The parties present themselves publicly as husband and wife.
- The parties have joint bank accounts, credit cards or mutual financial support.
- The parties file joint tax returns.
- The parties own a property together.
- The parties register on applications, leases, or contracts as husband and wife.
- One party, and any children, use the other party’s surname.
Judges in Colorado typically look for convincing evidence before determining a common law marriage. In particular, they want to see that the couple consistently sees and promotes themselves as married. They may often ask for evidence, such as documents, as well as family and friends which can support your claims.
What Are My Rights Under Common Law Marriage?
In Colorado, both parties in the common law marriage have the same rights, privileges, and responsibilities of a legal marriage. Only legal divorce or the death of one of the parties can terminate a common law marriage.
Being married offers many benefits. These could be access to your spouse’s health insurance, provision of benefits through your spouse’s employer, and Social Security benefits. To obtain these benefits you will often need to produce evidence of your common law marriage.
Parties in a common law marriage may obtain documentation of their marriage by filing a signed, notarized affidavit attesting to the marriage with the county clerk and recorder in their county. In some cases, couples may need to pursue the matter in a court of law.
Stephen Vertucci was recently ranked as the top divorce attorney in Fort Collins, CO by Three Best Rated®. Qualifications for ranking as a top 3 divorce lawyer in Fort Collins included a rigorous 50-Point inspection ranging from checking reputation, history, complaints, ratings, satisfaction, nearness, trust, cost and general excellence.
Three Best Rated® was created to rank top businesses in all cities across the US. They are “focused on best, not the most” when it comes to hand-selecting local businesses. It is truly an honor to be acknowledged as one of Fort Collins best. Our law office strives to make every client happy, everyday. We hope to continue giving our clients the best possible services for all family law needs. We specialize in divorce, child custody cases, child support cases, and more.
Stephen began practicing law in Colorado since 2007 and has focused his practice primarily on family law in Northern Colorado since that time. Stephen is a fan of the local art scene in Fort Collins and on his free time enjoys weekend road trips with his family. To learn more about Mr. Vertuccis hobbies and career path, read his bio here.
We know our clients deserve the best and we strive everyday to be the representation you need in order to protect your family. For more information about our mission, call today or visit the links below:
The most common form of child abduction is parental kidnapping. Parental kidnapping occurs when a non-custodial parent takes children without the custodial parent’s knowledge or consent. Colorado laws define taking a child as kidnapping, even if the abductor is a parent, if that parent does not have custody or parenting time privileges. If a non-custodial parent unlawfully takes a child, the other parent has available options for the child’s safe return.
Examples of Parental Kidnapping in Colorado
A non-custodial parent in a situation with a court-ordered custody agreement can never be too careful with what he or she does with children. Surprising children at school, for example, might not be a good idea if a parenting time order expressly forbids unsupervised parental visits. Picking children up from school, church, or elsewhere and taking them somewhere – even for ice cream down the road – without the legal right or the other parent’s consent, is parental kidnapping.
One of the most common examples of family abduction is removing a child from the state in violation of a custody order. Some families may live in one state, but have a child custody order from another state. This can present issues, as state officials can only enforce orders from within their state. If you moved to Colorado with a custody agreement from a different state, get a Colorado court order as soon as possible. That way, law enforcement will have the right to recover children and return them to the custodial parent. Otherwise, your ex-spouse may be able to escape liability because of a loophole in the system.
In Colorado, a parent with primary custody of minor children has the right to move out of state with them, without the other parent’s consent. This does not constitute parental kidnapping. However, the non-custodial parent has the right to petition the court to prohibit the removal of children from the state. The courts will hold a hearing to decide whether it should prevent the move or permit it to happen. Blocking the move may occur if the courts believe it is in the children’s best interests.
Colorado is unique in that most states do the opposite: the custodial parent must petition the courts to move out of the state. Note that removing children from the state or taking them elsewhere is not parental kidnapping if the courts have not issued a custody order. If the parents never went to court and received an official custody agreement, it is not kidnapping for one parent to take the children – even without the other parent’s consent or knowledge. Both parents will retain equal responsibilities and rights, until the court says differently with an official custody order.
What to Do About Parental Kidnapping
Finding out your ex-spouse breached a custody order and took physical control of your children without consent can be frightening. If you have already filed for allocation of parental rights and won, then your ex-spouse is in violation of the custody agreement and may be guilty of parental kidnapping. Your first step should be to call the police, especially if you believe your children to be in danger. The other parent could be guilty of 2nd-degree kidnapping, or wrongfully retaining a child under 18 years old. This is a class 5 felony.
Colorado law enforcement will have the power to take steps to retrieve your child as long as you have a state-issued court order granting you custody of the children. If your ex-spouse receives a conviction for parental kidnapping, he or she could face up to three years in prison and $100,000 in fines. The police may ask if you want to press charges, and the city may decide to prosecute regardless of what you say. Once you call the police, the matter is generally out of your hands.
Posted in Family Law on January 9, 2019
A magistrate is similar to an appointed judge but has more limits regarding his or her role in the judicial system. A magistrate only has the power to resolve certain disputes in the state of Colorado. The most common job of a magistrate is to resolve family law cases, such as temporary orders and parental responsibility hearings in divorce cases. Magistrates must follow specific and unique rules regarding their authority in Colorado court cases.
What Is a Magistrate?
A magistrate is someone with the ability to administer the law, either as a lay judge or civil officer. It is the magistrate’s duty to ensure the fair and impartial administration of justice. Most often, a magistrate presides over minor offense courts and preliminary hearings for more serious cases, rather than taking on major cases like an appointed judge. Like a judge, a magistrate will hear evidence and rule whether a person is guilty or not guilty. The magistrate also imposes an appropriate penalty as he or she deems fit. A judge has more power in court than a magistrate.
Colorado Rules of Civil Procedure
Colorado has a set rulebook for magistrates and judges: the Colorado Rules of Civil Procedure. This guide states that judges may not set aside facts of a case unless they are clearly erroneous. Judges and magistrates must also give due regard to the opportunity of the court to gauge witness credibility. It encourages judges to include sufficient explanations on decisions and motions, to help both parties and a reviewing court. It states that the findings of a master will represent the findings of the court. The Rules of Civil Procedure also has specific guidelines for magistrates.
- All parties involved in a case must consent to a magistrate performing the functions for which he or she has consent. Both parties must receive notices of a magistrate’s involvement in writing before the trial, or else receive an oral notice in open court. If this is the case, all parties may either consent or object.
- A magistrate in Colorado has the right to preside over probable cause hearings, pursuant to the rules of the Interstate Compact for Adult Offender Supervision. However, a court magistrate cannot perform any function that requires special consent, unless the oral or written notice of the function complies with the rules.
- Parties involved in a case using a magistrate have the right to appeal the final decision. Failure to file a petition to review the case within the deadline will serve as proof of both parties’ consent to the magistrate’s judgment.
Magistrates in Colorado mostly hear cases involving protection orders, temporary orders in family law cases, child support motions, parenting time or visitation orders, and legal custody hearings. The Colorado Supreme Court issues the court rules that govern magistrates.
How to Petition for Review of Magistrate Order in Colorado
If a person on either side of a case is unsatisfied with the final order a magistrate gives during a family law decision, that person has the right to petition for a review. Petition for Review of Magistrate Order requests a review of the magistrate’s order by the District Court, based on the belief that the magistrate made the judgment in error. The petition is not to request a new hearing or to correct a clerical error, but to review the decision.
A party has 21 days from the entry of a magistrate’s final judgment to file a Petition for Review. The petition must contain complete details of the case, as requested, and specific authorities that support the petition. A District Court Reviewing Judge will review the case separately from the presence of both parties. Once the deadline for petitions passes, the District Court will review the case file without holding a new hearing. Upon deciding on the case, the District Court will issue written copies of the final ruling to both parties.
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