How do you divide a house?

Often times it is difficult to let go of things that hold sentimental value to you. When you are dissolving your marriage you are forced to make several emotional decisions. You may be faced with the thorny decision of what to do with the family residence. It might be the first home that you and your spouse purchased, it might be the home that you brought your children home to from the hospital; or maybe you raised your family in the home and watched them spread their wings as they left for college.   Inevitably, the decision of what to do with the marital residence may be complex but as with most complicated matters you can survive the process. The goal is to survive while also making smart financial decisions for your future.

The acquisition of real property is most often the best investment made during a marriage. Both of you stand to benefit if the two of you can work together to protect your investment.   First, the two of you must decide whether one of you can afford to maintain the residence independently. If one party can afford to retain and maintain the home without financial assistance from the other then you can focus your energy on refinancing the applicable loan to remove the other party from the liability. The party retaining the home must then be able compensate the other party for their share of the property value. In instances where one party can not afford to do this, then the home is typically sold so each party can go their separate way.

Once the decision is made to sell the residence there is a laundry list of matters that must be agreed upon. For example:

-Who will the listing agent be?

-When do we put the home on the market?

-Do we have a checklist of tasks that are necessary to prepare the home for showing, such as minor repairs, cleaning, painting, new carpet, staging?

-How will we handle offers that are made on the property?

-How are the sale proceeds divided between us?

Tackling the difficult decision of what to do with the marital residence is but one of the challenges you will face as you dissolve your marriage. The real challenge is whether you can work together to make savvy decisions that will protect both of your financial futures.

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Retaining Control

I am sitting in a court room waiting for the hearing in front of me to end.  The two parties in front of the judge disagree about parenting time.  It is clear they are completely unmotivated to reach any sort of  agreement and are very angry with one another.  The judge gives them one last opportunity to discuss the matter and reach an agreement, and in doing so he leaves them with these parting words: You two find a way to go figure this out…because if you don’t I am going to make a decision based on the information I have received in the little bit of time we have had together.  I don’t know you and I don’t know your child but I am going to make a decision based on what I think is in his best interests, regardless of whether or not you like it or whether it works with your schedule or your lifestyle or your desires.

Family centric proceedings, whether divorce, custody, or child support, naturally involve a lot of very strong emotions.  We are, after all, talking about some of the most important “things” in our society…our spouse, our family, our children, our money.  It is easy to understand why people are often at opposite ends when it comes to painting the picture of what life is going to look like when the dust settles.  As gut-wrenching as it may feel, there is a lot to be said for compromise and negotiation when it is safe to do so.  The Judge above was talking about parenting time, but the same lesson can be applied across the board:  the parties have lived this life and they know what is important.  Working to reach an agreement outside of court gives parties the opportunity to retain control over what life will look like; to consider what is important for their child, what schedules need to be accommodated and how to divide assets in the best way for them.

So there it is…from a judge in the clearest language possible: if they have to, they will make a decision based on the information they have, not knowing the parties, or their children, or what is really important to them.  But both parties always have the ability to try to retain control and make the decisions that are best for the people and the family they do know with the wealth of information they have at hand.

Unbundled Legal Services

When you are transitioning through a divorce, legal separation or parental responsibility matter, an attorney can offer not only support and encouragement, but also unbiased, law based advice regarding your individual case. While friends and family members are more than willing to offer support of the first kind, they are more often than not unequipped to offer the second. Having an attorney to consult can often times help you feel more educated and more confident in the legal path you have chosen to pursue, as well as helping avoid unnecessary future conflict.

With the benefits and support that an attorney can offer during a domestic transition, why do so many people proceed without seeking legal assistance? One of the most common barriers to seeking legal assistance is cost. Attorney’s can be expensive, especially when you are involved in proceedings that can last for months. In an effort to make legal services accessible to more people, Colorado allows attorneys to offer Unbundled Legal Services. Unbundled Legal Services differs from a traditional attorney/client relationship in the scope of the representation. While in a traditional attorney/client relationship the attorney is counsel of record and is ethically bound to communicate with the opposing party/opposing counsel and the court, as well as make appearances in Court on behalf of their client, in an Unbundled Legal Services relationship, the client controls the scope of representation.

The easiest way to think of Unbundled Legal Services is as a consultation based legal relationship. For example, you may want an attorney to help draft paperwork, to help you prepare for a hearing or mediation, or even just to review an agreement that has been drafted. Unbundled Legal Services allows you to pick and choose the type of assistance you receive from the attorney, and more importantly, to retain far more control over the expense you incur for legal fees. If you have the funds to meet for one hour, then you meet with your attorney for an hour and pay your bill at the end of the session, or you pay the fees incurred for the time spent reviewing a document.

It is important to keep in mind that Unbundled Legal Services does not allow for the attorney to communicate with the opposing party/opposing counsel, the court, or to represent the client in court. This type of representation is not ideal for all clients, however, for those who it can serve, Unbundled Legal Services allows you to receive the legal assistance that is often crucial to your case, while working within your budget.

For more information on Unbundled Legal Services in Colorado, contact a licensed attorney in your area.

Boundaries

boundaries

There are many hurdles to cross in the aftermath of a divorce or separation.  You are likely to think of the most common obstacles to overcome on your way to a happy and healthy post-divorce life:  separating and maintaining two households; maintaining security and consistency for the children; managing emotions and filtering “helpful advice”.  However, there is another complication that should be proactively addressed when you find yourself in the midst of or on the other side of a divorce.  Boundaries.  The need to set boundaries with an ex may not be obvious at first, especially with all the pressing matters to address (like those mentioned above), but there will very likely come a time when one or both parties will push the line of what the other deems to be acceptable behavior post-divorce.  Boundary crossing may become a particularly important issue for those who find themselves divorced or separated after a very long relationship.  It can be quite hard to change habits and behaviors that have been in place for decades.

While in an ideal world divorced parties can comfortably and respectfully co-parent and co-exist, this is not always the case.  Even so, the most easygoing and companionable of post-divorce relationships can suffer from a misunderstanding of each parties boundaries.  It is important to keep in mind that not every person will have the same boundary lines, and if you want to peacefully interact, that has to be ok.  Failing to communicate or failing to accept and respect someones boundaries will cause anger and resentment that could have been avoided and may lead to negative exchanges that had not  previously existed.

Below are some common examples of boundary crossing that post-divorce parties may experience:

“borrowing” items: one party thinks it is ok to “borrow” something from the other without permission, for example yard tools.

volunteering at school: this covers a number of different issues from signing a child up or volunteering for an activity that does not occur on your parenting time day to singing both parties up for one parent teacher conference session.

escorting kids into the house: sometimes changing the locks on your house is not enough when the other party does not recognize what was once the marital residence as now being your residence.  An ex who continuously enters your home when dropping the kids off can interfere with new relationships and can place undue burden on the children that have just become accustomed to their parents no longer being together.  Not to mention the potential invasion of privacy that can be caused by a “curious” ex that likes to snoop.

entering the house without knocking/ arriving unannounced:  Nothing like getting out of the shower to find your ex settling the kids in. (You don’t get to see me naked anymore!!) Think of the trouble this could cause when your new significant other is in the shower with you! Boundaries are a must to avoid embarrassing or unacceptable situations, especially in front of the kids.  Again, this raises privacy issues that need to be taken seriously.

communicating with ex-family: For many people this is not an issue but in certain circumstances you may be offended if your ex is trying to maintain a relationship with your parents or siblings.  While it may seem natural to hold on to relationships you have had with your ex’s family, if your ex objects then perhaps it is time to limit your contact until such time as your ex is comfortable with re-establishing these relationships.  However, it is important to keep in mind that for some people this time may never come, as it is, after all, “their family”.

sitting together at events: While a time may come when ex’s are comfortable not only attending events together but sitting together at such events, most often one or both party’s will find this to be unachievable, particularly immediately following the dissolution of the relationship.  Be mindful of your ex’s comfort level, as allowing them the space they need in the beginning will go far to preserve peace in the long-run.

These examples are just those, examples.  They neither cover the full range of potential boundary issues nor do they address any individuals specific boundary needs.  It is for you to do some soul searching and determine what boundaries you need to have in place to live a happy, healthy and drama-free life.

 

Difficult Transitions

It is that time of year.  School has started again.  This is often a very exciting time, but for divorced parents or families in transition, it can also be challenging and stressful.  Whether it is your first school year as a divorced or separated parent or you are a seasoned veteran, there are some things that you can do to ease the anxiety and it all centers around one key idea: information.  Often times, one parent can feel as though they are being purposely deprived of information when the other parent does not proactively share what they know or seems to have more information.  When this occurs, it is sometimes the result of one parent purposely not sharing information but it is most often the result of the busy life.  Whatever the cause, whether purposeful or accidental, it is important to keep in mind that while healthy communication and co-parenting is the ideal goal, separated parents are no longer responsible for keeping the other up to speed or ensuring they are involved in and informed about their child’s life.  When one parent assumes that the other will do this or misplaces this responsibility on the other parent, it only causes anger and frustration.

So, back to our helpful tip.  Information…it is the key to happiness, or at least to peace of mind.

1) Make sure both parents are listed as emergency contacts, and parents, on your child’s school file.

2) Meet your child’s teachers.  Do this proactively.  Don’t wait for parent teacher conferences to come around, utilize the back to school night as an opportunity to do this, or set-up individual meetings with the teachers at the beginning of the year to introduce yourself.

3) Continue being involved with your child’s teachers throughout the year.  Again, don’t wait for parent teacher conferences, set-up occasional meetings just to check in.

4) Technology is your best friend.  Most school districts utilize online school portals which give you access to your child’s student file including the academic calendar, school calendar with important events, your child’s absence/tardy record, school grades and in some cases deadlines for projects and large assignments.  Access this website and your child’s file frequently!  It is one of your easiest sources of information!

While it is sometimes easy to let the responsibility fall to someone else, being pro-active with your child’s teachers and activities will go a long way in easing your transition as a divorced or separated parent.

Translation Tuesday: Domestic Relations

Domestic relations is the term used by the court system to classify or describe the type of case before them.  For example, if you are suing someone, it is a civil case.  If someone is in court for assault, it is usually a criminal case.  The world of domestic relations includes many different types of matters, the same way a criminal case can be any number of matters: assault, robbery, theft, etc.  Here are some of the most common domestic relations matters:

Dissolution of Marriage: Most commonly thought of as a divorce, in this proceeding a court will enter Orders separating and assigning marital property and debt; establishing maintenance (or alimony) if appropriate; and if there are children of the marriage, allocating parental responsibilities and establishing child support.  At the resolution of a dissolution of marriage matter, a Decree of Dissolution of Marriage is entered, confirming that the marriage has been terminated.

Legal Separation: Similar to a dissolution of marriage, except that at the resolution of the case the parties are not legally divorced.  This means the legal status of the marriage is still intact.  You cannot legally get re-married at the resolution of a legal separation because you are still legally married.

Allocation of Parental Responsibilities: Most commonly thought of as a “custody case”, though the term “custody” is no longer used.  For more information, check out Translation Tuesday: Allocation of Parental Responsibilities

Motion to Modify Parenting Time: Just like it sounds, this is when the court is asked to reevaluate an existing parenting time schedule and change it in some way.  See Translation Tuesday: Allocation of Parental Responsibilities  for more information on parenting time.

Motion to Modify Child Support: Much like the above Motion, this Motion is asking the court to reevaluate an existing order for child support and determine if a change in the amount of child support is needed.  Certain standards must be met before modification of child support can occur.

Post-Decree: This is a term that refers to any matter raised before the court after it has issued a Decree, for example, a Motion to Modify Parenting Time when it involves children of the marriage.

 

There are many other matters included in Domestic Relations, but those talked about are the matters seen most frequently.  If you have questions about your circumstances or what kind of matter you would pursue, it is always best to contact a licensed attorney in your area.

Translation Tuesday: Experts

Black’s Law Dictionary defines expert  as: one who is knowledgable in a specialized field, that knowledge being obtained from either education or personal experience.”  Black’s Law Dictionary 578 (6th ed. 1990).  In domestic relations cases, an expert may be appointed by the Court, agreed upon by the parties, or hired by an individual party to provide information to the Court on a specific matter.  Depending on the circumstances and details of your case, there are many different types of experts that might be useful.  Below are some of the most frequent experts we come across in the domestic relations field.

– Appraiser: evaluates a residence or property and provides what they believe is the fair market value of that residence or property

– Business Evaluator: conducts an evaluation of a business in order to provide a value figure for the business or determine what a business is worth, and potentially provide a monetary figure for one individual’s interest in the business.  Business valuations can be very in depth and detailed or can be  very restricted in their scope, depending on the information needed and the amount of funds available for the valuation.

– Child and Family Investigator (CFI): a neutral third party who conducts a brief investigation and provides a recommendation to the Court and parties regarding specific issues.  A CFI is used only for matters concerning minor children.  The total fees a private CFI can charge for their investigation has been capped by the Colorado legislature at $2,000.00, though exceptions exist which would allow for additional fees.

– Parental Responsibility Evaluator: similar to a CFI but able to conduct a more in depth investigation on a much broader scope.  A  PRE must be a licensed mental health professional, and there is no fee cap.

– Vocational Assessor: completes an analysis of a party’s ability to obtain a job based on their  work history, education, skills, credentials and the current job market.  This expert may also provide a wage analysis, or what the party has the ability to make, after reviewing their skill set and the current job market, among other items.

 

As always, for more information on any of the experts discussed above contact a licensed attorney in you area.

The Devil is in the Details

devil

After months, perhaps even years, your divorce is finally over. It has taken a toll on you emotionally and financially. You are prepared to look forward to a new beginning or a fresh start. However, now you have the daunting task of implementing and living by the terms of your separation agreement. Now you begin to realize that your need for closure distracted you from putting thoughtful consideration into the actual terms of your agreement. This routinely happens when you are a divorcing couple with children. Your end product focused on key elements of who got what (property) and who paid what to whom (support) but you glossed over key details that are now resulting in disputes between you and your Ex. For example, the agreement states that your Ex has parenting time with the children for the weekend and you have parenting time every Monday. President’s Day is fast approaching and the kids do not have school on Monday. Is it your Ex’s responsibility to care for the children until 3:00 when school would have been dismissed? Or is it your turn to take a day off from work to stay home with the kids?   It is important to remember to include a road map for resolving future disputes in your original agreement. You may want to include vehicles to resolve differences, disputes or ambiguities. A helpful tool is to include language in your agreement that requires you to mediate a dispute such as the one I referenced above. Perhaps mediation will allow you an opportunity to resolve disputes amicably, quickly and with less assault to your pocket book since children’s needs are ever-changing. With a plan to resolve disputes, we can avoid reliving the stress of the original divorce all over again.

Translation Tuesday: Allocation of Parental Responsibilities

Allocation of Parental Responsibilities… that is quite the  mouthful.  In reality, an Allocation of Parental Responsibilities case, or APR case as we like to call it, is not quite as complicated as it sounds.  Most people would recognize an APR case as a “custody” case.  We don’t use the word “custody” anymore, because too often it brings to mind the struggle to win custody.  The now used term of APR better fits the realities of this type of case: the court (or parties) are allocating, or assigning, the aspects of parental responsibility between the parties.  Note I said allocating ‘between’ the parties, not to one party or the other.  The responsibilities of parenting are divvied up between the parties, which is very different from the notion of one party ‘winning’ custody.

So what actually makes up the “parental responsibilities” portion of an APR case?  1) Parenting Time; 2) Decision Making; and 3) Child Support.  Luckily, the meanings of each of these terms are very much what they sound like, but I will address each term briefly.

Parenting Time – where the children are at any given time;  which parent is spending uninterrupted time with the children and for what period.

Decision Making – how do the parents make major decisions about the children for matters concerning education, health, religion and usually, extracurricular activities.

According to Colorado statute, the overriding guideline when entering Orders regarding children, including for parenting time and decision making, is what is in the best interests of the child(ren).  However, depending on your circumstances, there may be additional standards of review that the court may have to apply to your case.

Child SupportBlack’s Law Dictionary (the 6th edition) defines Child Support as:  The legal obligation of parents to contribute to the economic maintenance, including education, of their children; enforceable in both civil and criminal contexts.  In a dissolution or custody action, money paid by one parent to another toward expenses of children of the marriage.  

Child support is based on a formula. There are a number of factors that effect the child support obligation, including but not limited to the number of overnights allocated to each party and each party’s monthly gross income.  Because child support is for the benefit of the child(ren) and not the receiving party, it is the intention of the formula to remove discretion when determining a child support obligation.  Input the factors and out comes the obligation.  The existence of the child support formula and lack of party discretion can sometimes, though not always, make child support one of the easier issues to resolve.

For additional information on navigating any domestic legal proceeding, check out Translation Tuesday: Common Legal Terms.

As always, you should contact a licensed attorney in your area to get a better understanding of how Colorado law applies to your circumstances.

Expectations and Reactions

expectations

It is difficult to maintain a relationship with someone when the trust that once existed in that relationship is gone.  This is often one of the lingering consequences of a divorce or allocation of parental responsibility case(what you might think of as child custody).  The dynamics of the relationship are naturally going to change, but each party’s expectations and reactions can drastically influence the course of the new relationship.  Because trust, and often respect, have been strained or neglected, it is not unusual for a party to expect the worst by default.

When one party is expecting bad behavior from the other, the initial reaction is usually to place blame, whether or not that blame is justified.  This behavior is only intensified by the lack of direct communication between the parties.  Far too often a party is willing to allow communication through a child, or to take the words of a child as gold.  It is important to keep in mind that children love both of their parents and are often self-filtering information in order to please each parent.

The way you manage your expectations and reactions can go a long way towards making interactions with an Ex smooth, if not pleasant.  If you neutralize your expectations, the way you react is likely to follow suit.  As daunting a task as it may seem, giving your Ex the benefit of the doubt can ease strains in communication and help rebuild trust and respect in the new dynamic.

So go ahead, go out on a limb and assume the best.

For more information on Co-Parenting, check out this post.