THE REPRESENTATION YOU NEED IN ORDER TO PROTECT YOUR FAMILY
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.
For more information, contact our offices today.
Posted in Family Law on December 22, 2018
Several states now allow civil unions for both same-sex and opposite-sex couples, including Colorado. Essentially, a civil union is a marriage in every way but name. Almost every law that applies to marriage also applies to civil unions. Domestic partnerships, however vary from civil unions greatly. It can be difficult to determine the differences in rights and characteristics between marriage, civil unions, and domestic partnerships. For help determining which of these is the best for you and your partner, talk with a family law attorney in Colorado; state laws make a difference when deciding what will be the best option.
Things to Know About Civil Unions:
Civil union laws are relatively new in the U.S. The courts treat these unions the same as marriages.
- The law regards civil union partners as immediate family members on legally binding documents.
- Civil union partners receive spousal employer benefits the same way that traditional spouses do, including healthcare, compensation, survivor benefits, unemployment coverage, and protection under the Family Medical Leave Act (FMLA).
- In a court of law, civil union partners benefit from the same protection as married spouses have not to testify against one another, or reveal conversations between one another deemed confidential.
- A civil union partner is a spouse for all purposes of probate proceedings, i.e. wills, inheritances, and family trusts.
- Civil union partners can enter into pre-nuptial and post-nuptial agreements the same as couples in or entering into traditional marriage.
- Civil union partners have the same right to presumption of paternity of a child as in a traditional marriage, even if there is no biological relationship.
- A civil union partner is a spouse for the purposes of fostering or adopting. Civil union partners can adopt jointly, just as a married couple can.
- A civil union partner can adopt the existing child of their partner through identical stepparent procedures to those used for traditionally married couples.
Colorado Civil Union Rights
Because the federal government does not recognize civil unions – nor do many states – civil union partners cannot receive federal benefits. These include federal income tax filing status, survivor benefits, federal retirement pensions, and spousal social security.
Part of the reason why the federal government doesn’t recognize civil unions is because of Defense of Marriage Act (DOMA). The Supreme Court overturned sections of DOMA that denied federal benefits to traditionally married same-sex couples who married in states where it is legal. However, this only applies to same-sex marriages, not same-sex or opposite-sex civil unions. Therefore, civil union partners receive no benefits under federal law, only on state-by-state basis. Many civil union couples are hopeful that this Supreme Court ruling will eventually change.
Civil Unions vs. Domestic Partnerships
Domestic partnerships are not synonymous with marriage in the same way as civil unions. While domestic partners have limited financial rights, including the right to receive a pension, receive a partner’s health insurance coverage, and file joint tax returns, that is essentially where the rights of a domestic partnership end. Domestic partnerships are not typically ceremonial, and need only to register at the local level in some places.
Though the differences between civil unions and domestic partnerships vary from state-to-state, civil unions provide more rights overall. This includes more state-based rights, more non-federal benefits similar to marriage, probate rights, shared debt responsibility, and shared rights to property, among other things.
Nonetheless, domestic partnerships provide some important rights. For instance, a domestic partner has the right to pursue damages after the wrongful death of his or her partner. Domestic partners also have the same right to privileged, private communications as married couples and couples in a civil union, meaning that they do not have to testify against one another.
When a person with a biological child marries another person, the new spouse becomes the child’s stepparent. There are many situations in which a stepparent may wish to raise the child permanently with the child’s biological parent, and adoption is the best way to ensure the child has the legal protection afforded to a biological child. An adoption can also help bring a family closer.
In Colorado, a stepparent may adopt a spouse’s biological child under certain conditions. First, the stepparent must not have any prior felony convictions that involve child abuse, violent crime, or crimes of a sexual nature.
Under Colorado law, a child is eligible for adoption when the other biological parent is deceased, or the court has officially ended the parent-child legal relationship between the child and the other biological parent. If the other parent is still alive, he or she must voluntarily relinquish parental rights or provide written permission for the adoption to the other biological parent.
Benefits of Stepparent Adoption
Stepparent adoption can help a mixed family feel more “whole” in several ways. The adopted child may take the new adoptive parent’s last name and feel like more of a family. Depending on the age of the adopted child, a stepparent adoption can be a great way to overcome the difficulties of a divorce or the death of a parent.
The adopted child will have all of the rights that a biological child would, including inheritance rights and the right to pursue a wrongful death claim if the adoptive parent dies due to the negligence of another party.
The Adoption Process
Once a biological parent obtains the consent of the other biological parent for the adoption to move forward, the adoptive parent will need to undergo a federal and state criminal background check. The adoptive parent must also obtain and complete several forms, including:
- Petition for Adoption
- Verified Statement of Fees Charged
- Consent to Adoption – Custodial Parent
- Consent to Adoption – Child Over Twelve Years of Age
- Notice of Hearing
- Petition to Terminate the Parent-Child Legal Relationship
- Consent to Adoption – Non-Custodial Parent
- Waiver and Acceptance of Service
An experienced family law attorney can help an adoption applicant fill out the necessary paperwork and track down any other documentation that may need to accompany the petition.
After completing and submitting this packet of paperwork, the court will likely send an investigator to conduct a home check. This person’s job is to determine whether the adoption would be in the best interest of the child. The investigator will likely ask the child a few questions about his or her home life, school, and his or her relationship with the parents. The investigator will also interview the parents, relatives, step-siblings, and other parties who may be able to provide insight into the family’s dynamics.
The Adoption Hearing and Beyond
Once the investigator provides the court with his or her findings, the adoption process will proceed to a hearing. During this hearing, the adoption applicant will provide the judge with his or her reasoning why the judge should end the legal parent-child relationship with the other biological parent and approve the adoption. If the other biological parent does not contest the adoption or has voluntarily relinquished his or her parental rights, the judge will likely approve the adoption petition.
After the judge approves the adoption, he or she will issue a Final Decree formalizing the adoption and recognizing the legal parent-child relationship between the adoptive parent and adopted child. The parents may also arrange for a name change and a reissued birth certificate. Adoption can help safeguard a family’s financial future and protect an adopted child in several ways. If you believe that an adoption would be right for your family, consult an attorney as soon as possible.