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).