Know the Difference Between Mediation and Arbitration? You Should.

August 31, 2023

James Townsend

Have you ever wondered about the difference between mediation and arbitration? Aren’t they the same thing? No, they are not. They are two distinct paths in the process of alternative dispute resolution, and understanding the pros and cons of each can help you make a better decision regarding which path to choose for your case.

Mediation vs. Arbitration

In simple terms, mediation is collaborative while arbitration is adjudicative. Mediation is like cooking a meal together; both parties have a say in the recipe. Arbitration, on the other hand, is akin to a cooking show with a judge that tastes each dish and decides a winner.

A Real-World Example

Picture this: a business partnership gone awry. In mediation, both parties work with a mediator to hash out differences and decide mutually beneficial terms. No one is forced into a decision. In arbitration, on the other hand, an arbitrator listens to both sides and makes a binding decision. A mediator in this case may facilitate a discussion to amicably dissolve or even save the sinking partnership, while an arbitrator will decide on whose terms the partnership will be dissolved.

Your Path, Your Choice

Choosing between mediation and arbitration should not be a coin toss. It should be a calculated decision because it can affect the outcome and your level of involvement in it. If you value collaboration and flexibility, mediation is your best bet. Want a swift, decisive outcome? Consider opting for arbitration. Just remember, the choice you make today sets the tone for your dispute resolution journey tomorrow.

Disclaimer: The information provided in this article is intended for general informational purposes only and should not be construed as legal advice. Laws and guidelines are subject to change, and the specifics of your situation can affect how the law applies to you. For legal advice pertaining to your situation, please consult with a qualified attorney.

Modifying Spousal Maintenance in Colorado

August 31, 2023

James Townsend

In Colorado, the modification of spousal maintenance (also known as alimony) is governed by statute, specifically C.R.S. § 14-10-122. Generally speaking, a court may modify a spousal maintenance award only if there has been a substantial and continuing change in circumstances that makes the terms unfair. Common examples of such changes may include:

  • Loss of employment or significant decrease in income
  • Substantial increase in income of either party
  • Retirement
  • Serious illness or disability
  • Remarriage or cohabitation of the recipient spouse

The party seeking the modification usually has the burden of proof to show that the change in circumstances warrants a modification. Typically, temporary changes, such as short-term job loss, might not be considered “continuing” and may not justify a modification. Additionally, it’s important to check the original divorce or separation agreement, as some couples include clauses that specify the conditions under which spousal maintenance can be modified or that make the maintenance “non-modifiable.”

Please note that this is a simplified overview, and legal standards can be complex. For legal advice tailored to your specific situation, it’s best to consult with an attorney experienced in Colorado family law.
Disclaimer: The content in this article is for informational purposes only and should not be construed as legal advice. Always consult with a qualified attorney for legal matters.

How to File Divorce in Colorado

August 24, 2023

James Townsend

Filing for divorce in Colorado involves a series of legal steps. Here’s a concise 200-word guide to the process:

  1. Determine Eligibility: At least one spouse must have resided in Colorado for a minimum of 91 days before filing.
  2. Choose the Appropriate Forms: Colorado offers specific divorce forms depending on whether you have children. You can obtain these from the Colorado Judicial Branch’s website or your local courthouse.
  3. File the Petition: The filing spouse (Petitioner) completes the required forms and files them with the appropriate district court. A filing fee is required.
  4. Serve the Other Spouse: The non-filing spouse (Respondent) must be officially served with divorce papers. This can be done through a process server or law enforcement.
  5. Response: The Respondent has 21 days (if served within Colorado) to file a response.
  6. Financial Disclosures: Both parties must exchange financial information within 42 days of serving the petition.
  7. Parenting Classes: If children are involved, parents may need to attend mandatory parenting classes.
  8. Settlement or Trial: Spouses may reach a settlement or proceed to trial if they cannot agree on issues such as property division or child custody.
  9. Decree: Once the court approves the agreement or makes a decision after trial, the judge will issue the Decree of Dissolution of Marriage, finalizing the divorce.

Please consult with a Colorado family law attorney to ensure that you understand the specific requirements and obligations that apply to your situation. The laws and procedures can be complex, and professional legal guidance is strongly recommended.

Property Division in Colorado Divorces

August 24, 2023

James Townsend

Property division in Colorado divorces is governed by the principles of equitable distribution, as set forth in Colorado Revised Statutes §14-10-113. Unlike community property states, Colorado does not automatically divide marital assets equally. Instead, the court aims to divide the property in a manner that is fair and just (“equitably”), considering the circumstances of each case.

Marital property includes assets acquired during the marriage, regardless of whose name is on the title. Separate property, which typically consists of assets owned prior to the marriage or received as a gift or inheritance during the marriage, usually remains with the original owner.

Factors considered in the division of property may include the contribution of each spouse to the acquisition of the marital property, the value of the property set apart to each spouse, the economic circumstances of each spouse, and any increase or decrease in the value of separate property during the marriage. The court may also consider the desire to award the family home to the spouse with whom the children reside most of the time.

Debts are also divided in a manner deemed equitable, taking into consideration factors like the purpose of the debt and which party benefited from the incurred debt.

Since property division in a divorce can be complex, involving various legal subtleties and potential tax implications, it is advisable to consult with a family law attorney experienced in Colorado law to understand the specific considerations relevant to an individual’s situation.

What Are the Alimony Guidelines in Colorado?

August 24, 2023

James Townsend

Are you confused and frustrated trying to understand the guidelines for alimony in Colorado; you’re not alone. Alimony, or “spousal maintenance” as it is known in Colorado, is a complicated and difficult area of law to understand for most couples filing for divorce here.

The guidelines are set forth in Colorado Revised Statutes §14-10-114, and, as stated, they are only guidelines; courts are not bound to follow them. For marriages lasting three years or more, the statute provides a guideline formula for family law courts to use to determine the amount and duration of maintenance if it is awarded at all. For most situations the guideline amount is approximately 40% of the higher income earner’s monthly adjusted gross income minus 50% of the lower income earner’s monthly adjusted gross income. There is an upper income limit, however, to which this formula applies, and, as previously mentioned, courts may choose to not follow the guidelines based on various factors.

The duration of maintenance generally ranges from 31% to 50% of the length of the marriage, depending on the number of years the couple was married. Keep in mind, the court has discretion to deviate from these guidelines if specific findings are made to justify a different term. Family law courts consider several factors such as the length of the marriage, the financial resources of both parties, the lifestyle established during the marriage, and the needs of the receiving spouse.

A party can file a petition to modify maintenance if the parties have not agreed that the maintenance is contractual and non-modifiable. Generally, to prevail on a motion to modify maintenance, a party must show a substantial and continuing change in circumstances that would result in the current order being unduly unfair.

Please note that this explanation is meant to provide a general overview and should not be construed as legal advice for any situation. Please consult with an experienced Colorado family law attorney for specific guidance.

The Allocation of Parental Responsibilities in Colorado: An Overview

By: James K. Townsend

August 15, 2023

Navigating through the intricacies of child custody, or as we refer to it in Colorado, the “allocation of parental responsibilities” or “APR,” can be both complex and emotionally draining. It’s a topic that all divorcing parents, and those considering divorce should understand. The following is a helpful summary of some of the basic concepts of the allocation of parental responsibilities in Colorado.

1. The Best Interests of the Child Standard

Central to Colorado’s APR laws is the child’s well-being or “best interests of the child.” This concept is so important that it is worth re-emphasizing; the court will place the interests of the child ahead of the interest of the parties requesting APR. 

2. Understanding the Difference Between Parenting Time and Decision-Making

The allocation of parental responsibilities in Colorado is separated into two important parts:

  • Parenting Time (often referred to as Physical Custody): Parenting time is often referred to in other jurisdiction as custody and relates to where the child will physically stay and when. In Colorado, there is no presumed or default parenting time.
  • Decision-making (Legal Custody): This involves the authority to make significant life decisions concerning the child’s upbringing such as: education, healthcare, and religious guidance. Decision-making can be joint or sole.

3. Parenting Time and Parenting Plans

The parenting time schedule is spelled out in a “parenting plan.” A parenting plan is a detailed agreement outlining parenting time schedules, decision-making responsibilities, and other relevant stipulations. If the parties agree on a parenting plan, the court will adopt it, and it becomes an order of the court, enforceable with the contempt powers of the court. If the parties cannot agree, the court will create a plan based on the child’s best interests.

4. How Do Court Decide Parenting Time?

When determining parenting time schedules in the “best interests of the child,” the court will consider:

  • The child’s wishes, contingent on age and maturity
  • The wishes of each parent
  • The relationship between the child, parents, siblings, and other significant individuals
  • Adaptation to home, school, and community
  • The mental and physical health of everyone involved
  • Any history of abuse or neglect
  • The ability of each parent to foster a loving relationship with the other parent

5. Modifying Parenting Time Orders

For simple changes, the court has the power to modify a previous parenting time order any time a party makes such a request, and the court believes the change will be in the child’s best interest. However, for changes in the parenting plan that result in a change of the primary parent, i.e., the parent with the majority of parenting time, the court can only make such a change if something significant has happened in the child’s life, and the change is in the best interests of the child.

6. Enforcement of Parenting Plans

If a party violates the parenting plan, the non-offending party can seek enforcement through the court. Non-compliance with a court order can lead to serious legal consequences including, but not limited to, being held in contempt, being fined, or even being put in jail.

Conclusion

The allocation of parental responsibilities in Colorado is complicated and can be emotionally taxing. Focusing on the best interests of your child and seeking the guidance of an experienced family law attorney can help the process be more manageable.

The Process of Divorce in the State of Colorado

One of the most common questions I receive as an experienced divorce attorney relates to the process of divorce, or “dissolution of marriage,” in the state of Colorado. Below is a list of, and brief summary of, several of the most common steps in a Colorado divorce:

  1. Filing the Petition: The process begins when one spouse (the “Petitioner”) files a “Petition for Dissolution of Marriage” (and several other forms) with the appropriate Colorado court. Colorado is a no-fault state, meaning, there is no need to allege wrong-doing by the other party to request a divorce. If there are children involved, additional paperwork is required. The other spouse (the respondent) is then served with these papers.
  2. Service: The Petitioner must serve the other spouse (the “Respondent”) with copies of the paperwork following to the Colorado Rules of Civil Procedure.
  3. Response: The Respondent has a specified time (usually 21 days if in Colorado, or 35 days if outside the state) to file a Response.
  4. Initial Disclosures: In a Colorado divorce, initial disclosures are a mandatory part of the process, allowing both parties and the court to have a clear understanding of the financial aspects of the marriage. These disclosures help ensure that the division of property, child support, alimony, and other financial matters are handled fairly, and they include paperwork that shows the income, expenses, and assets of each party.
  5. Temporary Orders: If necessary, either party can request that the court enter temporary orders. These are orders that are meant to be in place during the duration of the divorce process. These can include child support, maintenance, or orders related to property.
  6. Discovery: This is the information-gathering stage, where both parties can request additional information from each other. This can include depositions, interrogatories, or subpoenas. The rules and deadlines regarding discovery are often specific to the court where the divorce is filed, and judges sometimes issue those in the form of a “Case Management Order.”
  7. Parenting Classes: If there are minor children, both parents are required to attend parenting classes and to file proof of completion of that class with the court.
  8. Settlement and Mediation: Once the parties have exchanged financial documents, the parties typically attempt to settle the matter. If the parties can agree on the major issues of the case, they submit the proper paperwork to the court and the matter is closed. If the parties cannot come to an agreement, then the issues are resolved at trial, however, prior to setting a divorce for trial, most Colorado courts require that the parties attempt to resolve their disagreements in mediation. Mediation is a non-binding process where each side presents their proposals, and the mediator works to help the parties come to a mutual agreement.
  9. Trial: If the parties cannot reach an agreement on all major issues of the case, the matter is set for a trial. At trial, a judge (not a jury) will make the decisions regarding any unresolved issues including, but not limited to division of property, child custody, and maintenance.
  10. Final Orders: Once all issues are resolved (either by the parties or in a trial), the court will issue a Decree of Dissolution of Marriage, which finalizes the divorce. In Colorado, the parties must wait at least 91 days after filing the initial petition before the divorce can be finalized.

Please understand that the above is meant only as a simple summary. The actual process may vary greatly depending on specific facts of each case. An experienced family law attorney can walk you through the process and answer any questions you may.

The Top Five Most Common Mistakes People Make When Handling Their Own Divorces in Colorado

Introduction

My hands were sweating profusely, and I was literally experiencing shortness of breath as I prepared to go in front of the judge. The court room was packed, yet silent, adding to the tension. At any moment, I felt like I might throw up, and I was a licensed attorney appearing on behalf of a client. Since that first court appearance, I have appeared countless times in front of judges, but I have never forgotten how scary it can be, particularly for the uninitiated.

Navigating through the complex legal landscape of a divorce can be an incredibly daunting task, particularly for those who have not received legal training. Despite that fact, many couples choose to manage their own divorces in Colorado to save on attorney fees or to maintain control over the process. However, handling your own divorce, or handling it “pro se,” can lead to costly errors. Here are my picks for the top five most common mistakes I have seen couples make when handling their own divorces in Colorado.

  1. Failing to Understand Colorado’s Divorce Laws

One of the key concepts in Colorado law that is most often misunderstood is that Colorado follows an “equitable distribution” model, which means the court divides marital property in a manner that it deems fair, not necessarily equally. Pro se parties often assume that assets will be split 50/50, and often that is what happens. However, the court considers several factors such as each spouse’s financial situation, contributions to the marital property (including contributions as a homemaker), and the economic circumstances of each spouse at the time of the division. Misunderstanding these nuances can lead to an unfair distribution of the assets.

Additionally, Colorado is a no-fault divorce state, meaning the parties do not need to prove that their spouse was at fault to get a divorce. Nevertheless, some individuals waste valuable time and resources trying to prove the other spouse’s misconduct. Such behavior elevates the tension and acrimony between the parties and often draws out the divorce process unnecessarily. 

  1. Failure to Understand the Rules

You have heard people say “Objection, hearsay” in movies and on TV shows, but what exactly is hearsay evidence? How long do you have to file a response to a motion filed by the other party? Whether you are an attorney or not, you are expected to know the rules of evidence as well as the rules of procedure and to comply with both. Knowing the rules can help you keep out evidence that could be damning to your case. Not knowing the rules can result in your case being dismissed.

  1. Neglecting Financial Disclosures

Full and transparent financial disclosures are essential in the divorce process. One of the most common mistakes I see pro se parties make is not thoroughly disclosing or understanding all financial assets and liabilities. This may include income, properties, retirement funds, business interests, debts, and more. Failing to fully understand and disclose these elements can lead to sanctions such as not being allowed to present evidence at trial, or the party being held in contempt. Additionally, parties who fail to disclose leave themselves open for the other party to motion for the court to reopen the case and redistribute the property at a later date.

  1. Overlooking Tax Consequences

Failure to understand the law about how Divorcing parties often overlook the tax implications of their decisions. Certain assets, for example, can carry significant tax liabilities. A party who is awarded a pre-tax retirement account in the divorce will have to pay ordinary state and federal income tax on the balance when it is withdrawn. Additionally, a party who receives stock or other investments may owe accumulated capital gains taxes. Without the guidance of a professional, these tax consequences can be missed, leading to unexpected financial burdens down the line.

  1. Poorly Drafted Parenting Plans

Colorado law emphasizes the best interests of the child when determining parenting time (often called “custody” in other states). Parties handling their own divorces often create parenting plans without fully understanding the legal implications or the practical matters they should consider. Once a parenting plan is adopted by the court, it becomes an order of the court, and a court can find parties in contempt for not following that order. A poorly constructed parenting plan can lead to confusion, ongoing disputes, additional strain on the children involved, and the need to return to court for clarification.

Conclusion

If you choose to handle your divorce pro se, it is essential to fully understand Colorado’s divorce laws and the rules associated with those laws, to carefully consider all financial and tax implications, and to draft a well-thought-out parenting plan. By being aware of these common mistakes, you can better prepare yourself for the complexities of a pro se divorce in Colorado. However, if you find yourself in a bind, please reach out to the experts at Ascent Legal Group, and we can help you achieve the kind of results you are looking for.