If I’m getting divorce because my spouse cheated, can I make him/her pay my attorney fees?

Short Answer:  Maybe, but not because of the cheating.

Explanation:  This is really two questions; not one. 

The first questions is essentially, “if my spouse cheated, will the court take that into consideration for any reason whatsoever?”  The answer is no.  Colorado is a no-fault divorce state, which means the court is prohibited from taking into consideration any fault on behalf of one of the spouses in deciding issues like attorney fees, property division and alimony. 

The second question is essentially, “can I get the court to order my soon-to-be-ex (“STBE”) pay my attorney fees?”  The answer is maybe.  In a divorce, you can ask the court to consider the financial resources of you and your STBE, and order your STBE pay a reasonable amount of your attorney fees if there is a disparity in your two incomes.  The purpose of an award of attorney fees is to equalize the parties’ financial positions.  For example, if your STBE earns $100,000.00 per year and you are a stay-at-home-parent earning little to no income, the court may order your ex to pay your attorney fees.  Keep in mind, the court will only order this typically at the end of your case, so you need to cover the costs up front and hope the court awards you attorney fees in the end. 

Additionally, just because there may be a large disparity in your two incomes, the court will not necessarily order attorney fees to be paid.  Judges may decline to do so for any number of reasons.  For example, the judge may believe you are responsible for dragging the divorce out, and therefore should not be rewarded with attorney fees.  Whether or not this is true is irrelevant.  The awarding of attorney fees is completely up to your judge’s discretion.  If the judge believes it is fair that each party pay their own attorney fees, that is the ruling and you’re outta luck.  Bottom line:  Don’t go through your divorce assuming you will get attorney fees in the end.  Like the rest of your divorce case, there is no guarantee.

To find out whether you might qualify for an award of attorney fees, contact Alisha Taibo through www.taibolaw.com or at (303) 653-2509.

How is Alimony/Maintenance determined?

Short Answer:  Whether to award maintenance and in what amount is determined by examining whether one spouse lacks sufficient property, including marital property, to provide for his or her reasonable needs and is unable to support him/herself through appropriate employment.

Explanation:  The purpose of maintenance is to substitute for financial support during the marriage to ease a lesser income-earning spouse’s transition into the work force and prevent the spouse from becoming dependent on public assistance.  For example, the court may use an award of maintenance as a tool to balance equities and compensate a spouse whose work has enabled the other spouse to obtain an education.  The determination of a spouse’s reasonable needs depends on the particular facts and circumstances of the parties’ marriage. 

In determining whether to award maintenance, the court must make a determination that the spouse requesting it lacks sufficient property, including marital property being divided, to provide for his or her reasonable needs and is unable to support his/herself through appropriate employment.  Appropriate employment is determined based on the facts and circumstances of each case, but essentially the court looks at the person’s earning capacity based on education and experience, as well as the person’s expectations and intentions during the marriage.  Additionally, the court must consider the receiving spouse’s share of the marital property in arriving at its maintenance award. 

The Court bases its findings on the financial conditions, abilities, and needs of the parties as they appear at the time of the divorce hearing rather than on what those conditions might have been in the past or may be in the future.  Therefore, even if the spouse requesting maintenance used to earn a higher income, that spouse may be entitled to maintenance depending on circumstances that exist at the time of the divorce, such as disability.  The court looks at each spouse’s earning capacity at the time of divorce, but will examine all relevant factors such as past earnings.

Maintenance must be requested in the petition for divorce or it is waived.  Therefore, if you are getting divorced, make sure you ask for maintenance in your divorce Petition or Response to the Petition, because if you do not, you may not have the option to change your mind later.  If maintenance is a factor in your divorce, you should hire an attorney to negotiate the terms of your property settlement and maintenance to ensure you receive the most fair settlement.  Contact me through www.taibolaw.com or via telephone at (303) 653-2509 to discuss your individual needs. 

My ex has never paid child support. How far back can I go after him/her for child support?

Short Answer:  Typically, you can get child support as far back as the date you petition the Court to order it.  If you already have a Court order and the payor is not paying, you can go after the full amount owed plus 12% interest.

Explanation:  The Child Support Statute, located at § 14-10-115, C.R.S. states the Court can order child support to begin after the date of the parties’ physical separation (in cases of a divorce), the filing of a petition (for child support, divorce or custody) or the date of service upon the other party of the petition – whichever date is latest.  If you have never had a case in the Court involving this marriage or child, the Court does not have jurisdiction to order the payor to pay child support before he or she is served.  This means, if you file a petition to establish child support, but it takes you a year to serve the other party, the Court cannot order child support until the date the payor is personally served with the petition.

If you already have a Court order for child support, and the payor is simply not paying, you are entitled to the entire amount the payor was ordered to pay, plus 12% annual interest on the arrears.  Additionally, you can file a motion for contempt against the payor or garnish the payor’s wages to get the payor to pay you on time going forward.

Contempt means that a person is not complying with a Court’s orders.  If you have a Court order for child support and the payor is not paying, that payor is in contempt of the child support order.  You can file a motion for contempt, which means you are asking the Court to find the payor in contempt of the Court order, ask the Court to compel the payor to pay, and ask for a sentence of jail or a fine.  Many times, this gets the payor’s attention.  And, if you win on the contempt, the Court will usually award you your attorney fees and costs for having to pursue the contempt to enforce the order.

You can garnish the wages of the payor to pay regular child support and arrears.  The garnishment of wages for child support is called an “income assignment.”  The procedure for doing this depends on the date of your child support order, due to several changes in this area of law.  The most recent change in the law states, for orders entered after 1996, income assignments are to be ordered by the Court automatically, unless the parties demonstrate an income assignment is not necessary.  If the Court did not order an income assignment in your case automatically, you can still get one.  If your ex has a history of not making child support payments on time or in the right amount, this may be a great option for you to save you the cost of filing contempt after contempt against the payor.

If you do not have a child support order in place and want to get one, you should file your petition as soon as possible to get the child support started as of the date you file or serve your ex!  The longer you wait, the more money you are losing. 

If someone owes you child support, or you would like to get a child support order in place, contact me through www.taibolaw.com or by phone at (303) 653-2509 to discuss what options are best for you.  Child support enforcement can be a complicated area.  You should consult with an attorney before deciding which avenue is in your, and your child’s, best interests.

If I have a medical marijuana card, will that affect custody?

Short answer:  Probably.

Explanation:  This is a simple question without a simple answer.  Legalization of medical marijuana in Colorado is new and therefore, there is little to no precedent to go on.

Custody is determined in Colorado using the “best interests of the child” standard.  There is no formula the Court uses to determine what custody arrangement is in the best interests of the child.  Rather, the Court looks at any and all factors relevant the child’s upbringing including, whether a particular custody arrangement “would endanger the child's physical health or significantly impair the child's emotional development.”  See In re Marriage of Hatton, 160 P.3d 326, 332 (Colo. App. 2007); In re Marriage of Fickling, 100 P.3d 571, 573 (Colo. App. 2004).  Courts are free to impose conditions on the exercise of parenting time, such as refraining from marijuana use, even if the parent is a valid medical marijuana card holder.  People in Interest of A.R.D., 43 P.3d 632, 636 (Colo. App. 2001); In re Marriage of Parr, 240 P.3d 509 (Colo.App.Div.1 2010); In re Marriage of Finer, 920 P.2d 325, 333 (Colo. App. 1996).  Every case is different, therefore the Courts recognize what constitutes endangerment to a particular child's physical or emotional health is a highly individualized determination.  In re Marriage of Parr, 240 P.3d 509 (Colo.App.Div.1 2010);

Courts in Colorado have restricted parenting time based on the fact that one parent holds a medical marijuana card.  Because trial court opinions are not published, it is not possible to know how many courts have ruled which way, and whether any particular Court would rule a particular way.  What is known is, if you are a medical marijuana user, it will come up in a custody hearing and you will have a tough burden to prove that the marijuana use will not endanger the child’s physical health or significantly impair the child’s emotional development.  It is important to know that you are not going to be presumed to be a responsible caregiver simply because you are acting within your legal rights to use marijuana.  Look at it this way:  You have a constitutional right to free speech.  But if your habitual use of foul language and yelling will endanger the child’s emotional health, you could lose custody rights.  As one judge in Washington State put it, "There's nothing in the medical marijuana law that deprives the court of its responsibility and legal authority to provide for proper care of children so that people aren't caring for children who are under the influence of alcohol or drugs."  See Medical Marijuana Can Cost Parents Custody, found at http://www.cbsnews.com/stories/2010/06/21/national/main6602698.shtml.  If you want to be on the safe side, you might look into other avenues of pain management.

If you have a custody question involving medical marijuana use, you will want the best representation.  Contact me through www.taibolaw.com or via telephone at (303) 653-2509.    

                                                                                                 

                                                                                                 

Can I throw her/him out after s/he's served divorce papers?

Short Answer:  No, but you can ask him or her to leave or seek a protection order.

Explanation:  When someone files for divorce, an injunction automatically goes into effect that restrains parties from keeping the other spouse from “necessities of life” such as clothes, medications and other daily requirements.  If you kick your spouse out of the house or change the locks, the spouse may simply call a locksmith to open the door, and may ask the Court to charge the locksmith’s bill to you (which can run over $300.00).  Additionally, you could face sanctions by the Court for violating the mandatory injunction because you are essentially keeping your soon-to-be-ex (“STBE”) from his or her clothes, medications and other personal effects. 

If you do not want to be around your STBE, you have the option to move out yourself, stay with a friend, or if you believe your STBE poses an imminent danger to your life or health, file for a Protection Order and ask the Court to order your STBE be restrained from coming within 100 yards of your house, your workplace, and anywhere else you may be found. 

If you decide to move yourself out of the house, BEWARE!  Make sure you take everything with you that you will want access to later.  Once you move out of the house, during the pendency of the divorce, many Courts will consider you to have “abandoned” the marital home and will order that you may not return without the permission of the spouse who remained.  This means that if you leave voluntarily, your STBE may change the locks with no repercussions, and if you break in, you could face sanctions.  This also means that if your STBE abandons the marital home, you are free to have the locks and garage code changed.  But again, BEWARE:  If your STBE moves out voluntarily, he or she may not be obligated to contribute to the marital home expenses anymore, which could put you in a bind depending on your situation. 

To determine what your rights are, you should talk to a lawyer about your individual situation.  No two cases are alike and depending on the facts of your case, you may have options not addressed here.  To discuss your individual case, contact me through www.taibolaw.com or via telephone at (303) 653-2509. 

For your convenience, below is the text of the Mandatory Injunction:

Notice:  Colorado Revised Statutes §14-10-107, provides that upon the filing of a Petition for Dissolution of Marriage or Legal Separation by the Petitioner and Co-Petitioner, or upon personal service of the Petition and Summons on the Respondent, or upon waiver and acceptance of service by the Respondent, an automatic temporary injunction shall be in effect against both parties until the Final Decree is entered, or the Petition is dismissed, or until further Order of the Court.  Either party may apply to the Court for further temporary orders, an expanded automatic temporary injunction, or modification or revocation under §14-10-108, C.R.S. or any other appropriate statute.

1.         Both parties are restrained from transferring, encumbering, concealing, or in any way disposing of, without the consent of the other party, or an Order of the Court, any marital property, except in the usual course of business or for the necessities of life.  Each party is required to notify the other party of any proposed extraordinary expenditures and to account for all extraordinary expenditures made after the injunction is in effect; and

2.         Both parties are enjoined from molesting or disturbing the peace of the other party or the minor child(ren); and

3.         Both parties are restrained from removing the minor child(ren) of the parties, if any, from the state without the consent of the other party or an Order of the Court; and

4.         Both parties are restrained, without at least 14 days advance notification and the written consent of the other party or an Order of the Court, from canceling, modifying, terminating, or allowing to lapse for nonpayment of premiums, any policy of health insurance, homeowner’s or renter’s insurance, or automobile insurance that provides coverage to either of the parties or the minor child(ren) or any policy of life insurance that names either of the parties or the minor child(ren) as a beneficiary.

Nothing in this automatic injunction shall prohibit either party from applying to the Court for further orders, an expanded automatic temporary injunction, or orders modifying or revoking this injunction.

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When Can Fault Be Considering in Dividing Marital Property?

Colorado, like most states now, is a no-fault divorce state.  This means that people may divorce without the need to show fault by one of the parties.  In fact, in Colorado, Courts are prohibited from considering marital fault or misconduct, such as infidelity, when dividing marital assets[i].  The courts may, however, consider “economic” fault.  The law states, a Court “shall divide the marital property, without regard to marital misconduct, in such proportions as the court deems just after considering all relevant factors including:

(a) The contribution of each spouse to the acquisition of the marital property, including the

contribution of a spouse as homemaker;

(b) The value of the property set apart to each spouse;

(c) The economic circumstances of each spouse at the time the division of property is to

become effective, including the desirability of awarding the family home or the right to live therein

for reasonable periods to the spouse with whom any children reside the majority of the time; and

(d) Any increases or decreases in the value of the separate property of the spouse during the marriage or the depletion of the separate property for marital purposes.”

Colo. Rev. Stat. § 14-10-113(1) (2011).

Unlike other states, Colorado is not a “community property” state[ii].  This means that the parties need not be accorded equal shares in the marital estate[iii].    The Court is required to distribute property equitably, not equally[iv].  Because of this, the Court may consider a variety of factors.  There is no mathematical formula for establishing a just and equitable property settlement or alimony[v].         

                                                                                                    

Economic fault comes into play when a spouse dissipates marital assets in contemplation of divorce[vi].  For example, if a husband buys a Harley Davidson for himself just before filing for divorce, the Court is more likely to apportion the assets and debts to offset that expense so the spouse who bought the Harley bears the debt.  Economic fault may also be considered in apportioning debt and assets if one spouse incurred gambling debt, expenses associated with criminal conviction and incarceration[vii], or one spouse damaged the property of the other spouse in retaliation.  In one case, where a wife, in an outburst of emotion, damaged and destroyed the husband’s personal effects, the Colorado Supreme Court upheld the trial’s court’s decision to award the husband the value of those assets against the wife.  Cohan v. Cohan, 372 P.2d 149 (Colo. 1962).  In short, while the Court may not consider the moral and social impacts of a spouse’s conduct during the marriage, it may consider the economic consequences of such conduct in apportioning debt and assets in order to effect an equitable division [viii].

You can protect yourself by not hiding assets, refraining from making expensive purchases just before filing, and of course, refraining from incurring huge gambling debts or destroying your spouse’s property in anger. Make sure to tell your attorney all the reasons you believe property should be divided a particular way.  If you would like to discuss how your property may be divided, contact me through www.taibolaw.com or at (303) 653-2509.

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[i] In re Jorgenson, 143 P.3d 1169, 1173 (Colo. App. 2006) (citing § 14-10-113(1), C.R.S. and In re Casias, 962 P.2d 999 (Colo. App. 1998)).

[ii]  In re Ellis, 538 P.2d 1347 (Colo. App. 1975), aff’d, 552 P.2d 506 (Colo. 1976).

[iii]  In re Boyd, 643 P.2d 804 (Colo. App. 1982).

[iv] In re Warrington, 44 Colo. App. 294, 616 P.2d 177 (Colo. 1980).

[v] Carlson v. Carlson, 497 P.2d 1006 (Colo. 1972).

[vi] In re Jorgenson, 143 P.3d at 1173 (citing In re Hunt, 909 P.2d 525 (Colo. 1995)).  

[vii] In re Casias, 962 P.2d 999, 1002 (Colo. App. 1998).

[viii] In re Casias, 962 P.2d 999, 1002 (Colo. App. 1998) (internal citation omitted).