Just You Wait Until Lil Johnny’s Twelve

An Overview of Child and Family Investigators, Child Legal Representatives and Parental Responsibilities Evaluators

custodyDivorced parents are fond of saying that at a certain age their children can go into court and “tell [the court] the truth” which will lead to changes in parenting time, decision-making, etc. The most common age they claim this can happen is when the child is twelve years old. There is no rule in Colorado on what age a child has to be to voice his/her opinion on parenting time. There is no hard and fast rule that says a court has to speak to the children. Generally children are not allowed in the courtroom during proceedings involving them and their parents. However, there are alternatives to allow their voices to be heard such as Child and Family Investigators, Child Legal Representatives, or Parental Responsibilities Evaluators.

On occasion a judge or magistrate will talk directly to a child to find out what his/her opinion is or what the child desires for an outcome. This is done on the record and out of the presence of the parents and their attorneys. These records are normally sealed and require a court order for good cause to be released. Generally, it has to be a very good reason to open these sealed records to parties. This is not a common occurrence and some judges will not allow it at all. When it does happen the children are usually teenagers and/or mature for their years.

Courtroom

This does not mean the judge will order what the child wants, but the judge will take the impressions and information garnered from such a conversation into account when issuing orders. Requesting a child be allowed to talk directly to the court is not something to be done lightly or without serious consideration of the pressure this puts on the child. It is not recommended that this be done with children who are very young. Having a child come to court is quite literally placing the child between the parties and smack dab in the middle of the fighting.

benefits-of-joint-custodyThere are other ways to take into account the wishes and opinions of the child. The most common way in Colorado is a Child and Family Investigator or CFI. This person is a neutral party appointed by the court, usually recommended by the attorneys in the case, to investigate all allegations and make recommendations to the court based upon their thorough investigation and the best interests of the child(ren). Barring exceptional circumstances, e.g., out of state travel for investigation, CFI fees in Colorado are capped at $2,000 with each party usually bearing one-half of the costs. These fees are due up front before an investigation begins. There are some CFI would take state assistance for those who qualify.

A CFI will speak with the parents and the child(ren) among others during the course of an investigation. The CFI files a report with the court at the end of the investigations with recommendations. A CFI is useful when there are allegations of drug/alcohol abuse by a parent or child, neglect or endangerment of a child by a parent, domestic violence, alienation of parental affections, and relocating with the child to another state. Where a CFI is not useful is where the parents simply do not get along and do not agree or communicate well. Just because one parent is unhappy is not a reason to request the appointment of a CFI.

Professional TestimonyAnother option is a Parental Responsibilities Evaluation or PRE. These are usually done by mental health professionals and can run over $10,000 and there is no cap on the expense. A PRE can ask for mental health evaluations or conduct testing if they are qualified. The PRE usually discusses issues with both parties, the child(ren) and interviews persons involved with the child. When there are issues of abuse or serious mental health issues a PRE can be helpful to the parties and the court. Again a PRE is most effective in situations which involve more than one parent being unhappy with the current situation.

On the opposite end is a Child Legal Representative or CLR. This is an attorney assigned to represent the child’s best interests which is different that representing the child’s interests. A CLR does not submit a report or testify in court. The CLR acts as an attorney at all proceedings including questioning and calling witnesses to testify. A CLR is useful in cases where there are older children such as teenagers and many times can help all parties reach a resolution outside of court. The parents are responsible for the payment of the CLR fees.

Child Tug of War

A prime consideration needs to be are you putting your child in the middle of a dispute with your ex to further your interests or your child’s. Children should not be asked to choose between parents. Although we always counsel clients not to ask their children to choose there is frequently one parent who does or who does not understand that what they are asking of the child equals making them choose between parents. Children are the innocent bystanders in divorce and custody cases. It is not their choice for their parents to divorce or dispute custody. Many times they are the casualties of these proceedings. So, yes, you can ask that Lil Johnny be allowed to talk to the court, but ask yourself if you really want to put Johnny in that position.

Written by June F. Bourrillion, Esq. for http://www.rkymtnlaw.com

Equitable versus Equal In Divorce

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The common question some clients ask is how many divorce cases have you won. Each case is subjective and each client is unique in their needs and goals. Truly there are no winners in a divorce. It is, sometimes, a traumatic unraveling of a part of a person’s life that they cannot get back. This is compounded by the division of their belongings, major assets and the separation of debts.

Colorado is an equitable division state for all assets and debts accumulated during a marriage regardless of whose name the asset or debt is in. One thing that is different in Colorado is that any property a person has before the marriage remains their separate property unless a person deliberately co-mingles the asset with marital assets. However, any increase in the value of that separate asset during the marriage can be divided.

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Equitable division of assets and debts can be confusing as most people think that means everything is divided 50/50. This is not necessarily so and depends on a variety of different factors and the specific circumstances of each case. A judge may divide assets in a way which seems unequal in order to equalize the circumstances of each party. Essentially this puts both parties on the same ground financially. It can be as simple as one person gets the marital house without buying out the other party and the other gets to keep all of his/her retirement – if it is a simple exchange of values.

equitable_mortgageIt is important to know what assets and debts you feel strongly you should keep or should be the other person’s responsibility. You need to understand that a lopsided division which may penalize one party is not necessarily going to be something a court will agree to or order. Being a “no fault” divorce state, Colorado does not necessarily take wrongdoing into account when dividing assets. Many judges do not want to hear about the string of affairs of one party because it is not deemed relevant to divide assets. There are always exceptions to this depending on circumstances. For instance if one party has a gambling problem, situations involving domestic violence and abuse or child abuse, and, sometimes, even one party spending lavish amounts on an extramarital affair to the detriment of the marital assets. This is not an exclusive list, but merely possible examples.

Dividing debts proportionate to each party’s income is also another way the Courts can resolve a case. If one party makes substantially more income than the other, that person may be given more of the marital debt. This can also help mitigate spousal maintenance in some cases by lowering the amount of output the spouse requesting maintenance has through debt division. Just because one spouse does not know the extent of the debt the other spouse has accumulated does not mean he/she will not be responsible for a portion of that debt. The rule is pretty clear in Colorado and anything accumulated during the marriage (asset or debt) is marital. Assets or debts accumulated after separation are not always marital but it depends on the circumstances of each case.

Devalued real estate balance sheet

So equitable does not mean equal division and depending on the facts of the case can be used to a client’s advantage in negotiating settlements. Every case is different and there are a myriad of different ways to separate, divide and apportion assets and debts. Consulting a lawyer before entering into any agreement can help you achieve a level of equitable division that you can be satisfied with.

Written by June F. Bourrillion, Esq. for http://www.rkymtnlaw.com

Misconceptions of Common Law Marriage

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Common law marriage is probably one of the most misunderstood concepts to non-lawyers in Colorado. Common law is derived from custom and judicial precedent rather than statutes. When applied to marriage it means a couple who intend and declare they are married without a formal license.

The biggest myth is that if you live with someone for a certain length of time that automatically makes you common law married. Not true, otherwise half the country would be married after sharing an apartment. In Colorado there is no length of time requirement.

The requirements are simple:

• To intend to hold yourself and your significant other out as a married couple.
• To file joint taxes as married.
• To own property together such as a house, cars, bank accounts, etc.

Most importantly, it is the “intent” to be seen as married which holds the most significance. Consistently introducing yourselves to all your friends, neighbors and co-workers as husband and wife. Calling each other husband or wife – joking aside. This combined with filing taxes as joint taxpayers or married but filing separate and/or holding significant property together can be interpreted as being common law married. It is the intent of both parties to be married to one another and to represent to everyone around them that they are married. One person considering himself/herself married to the other, when the other person does not is also not a common law marriage.

Simply having children together does not make you common law married. Even buying a house together does not necessarily make you common law married. If the intent of both parties is not the same then there is an argument that no common law marriage exists.

Written by June F. Bourrillion, Esq. for http://www.rkymtnlaw.com