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.

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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.

Translation Tuesday: Appearing in Court

There are many different occasions throughout a divorce or child related proceeding when you might have to appear in Court or speak with a Magistrate, Judge or Family Court Facilitator.  Keep in mind that every case is different and you may or may not have the following in your case.


Initial Status Conference – the first time, absent emergency circumstances, that the parties will appear in Court.  This is not a hearing, but an opportunity for the Court to meet the parties and the parties to meet the Court.  It also gives the Court an opportunity to issue deadlines to ensure the case is moving along, and to assist the parties through the process.
Temporary Orders Hearing – this might be the first hearing of a case. Testimony and evidence are presented and orders are issued.  The Temporary Orders hearing is an optional tool that can be used if the parties are unable to agree on what is happening while the case is pending, f.e. who pays the mortgage and other bills and who the kids will be with at any given time.  A party can request a Temporary Orders hearing if the parties cannot agree on all or any of the temporary issues needing to be addressed, and it is most often requested at the Initial Status Conference.  Sometimes parties who request a Temporary Orders hearing will be required to attend mediation before their hearing to attempt to come to an agreement on temporary issues without the Courts intervention.
Permanent Orders Hearing – this is the final hearing in the divorce case or allocation of parental responsibility case or other matter started with the Court.  Testimony and evidence are presented and the final orders are issued in the case. Generally speaking, once the parties attend the Permanent Orders hearing and permanent orders are entered, the case is finished.
Status Conference – sometimes during the case the Court will schedule a status conference with the parties, or more often their counsel, to get a status update on the case and how it is proceeding.  This may be in person at the courthouse or via telephone depending on the Judge/Magistrates preferences and schedule.

There are also a couple of other court related appearances that you should be aware of:

Mediation – as mentioned before, most counties will require parties to mediate before the parties can appear before a Judge or Magistrate for Orders.  For more information on mediation click here
Parenting Class – in Divorce cases with children and Allocation of Parental Responsibility cases, both parties will be required to attend a parenting class before the Court will hear the case.

Keep in mind that this is just a general list of the most common court appearances and related appearances. Every case is different and you should not assume that these will occur in your case.  For more information on what you can expect, you should contact a licensed attorney in your area.

Translation Tuesday: The world of mediation

Mediation – a process during which both parties negotiate and attempt to resolve any and all matters on which they disagree, using the assistance of a mediator.  The process does not involve Court oversight, allowing the parties to retain control over how they resolve any disputed issues.
Order to Mediate – an Order issued by the Court at the start of a case requiring the parties to participate in mediation.  Most jurisdiction’s require all parties to attend mediation before the case can be heard by a Judge.
Agreement to Mediate – as opposed to an Order to Mediate, this is when the parties voluntarily enter into an agreement to mediate certain disputed issues.  This is often found as a term in a Parenting Plan, where parties agree that they will attempt to resolve any disputed issues in the future regarding the implementation or modification of the Parenting Plan before seeking the Court’s assistance.
Mediator – a neutral third party whose purpose is to help the parties reach an agreement on any disputed issues.  A mediator cannot issue Orders or make the parties agree to anything.
Private Mediator – a mediator who is not employed by the Courts, but offers mediation services individually.
Office of Dispute Resolution – an office within the Colorado Judicial branch which provides mediation services to parties throughout the state.
Sliding Scale – a form of rate charging in which each party’s hourly rate is determined by their individual gross monthly income.  Usually offered through the Office of Dispute Resolution, though it is also offered by some private mediators as well.  This form of rate charging allows low income parties to participate in mediation when they otherwise might not be able to afford the process.
Scope of Mediation – the disputed topics or issues that the parties agree to cover in mediation.  Sometimes the topics or issues will be very limited, for example child support only, while other times, the parties may choose to not limit the scope of mediation, and therefore any topic or issue can be raised.
Disclosure – each party may be required to submit to the mediator documents which are relevant to the topics or issues being covered in mediation, for example a completed Sworn Financial Statement if financial issues such as maintenance or child support are being mediated.
Confidential Memorandum/Position Statement – this is a document that is prepared by each individual party and submitted to the mediator prior to mediation which sets forth the position of that party.   This document might contain the motivation of the party, the ideal result, cut-off point, and what a party might be willing to accept on any given issue.  This document is not provided to the other party and is seen only by the mediator.  It is intended to better help the mediator understand the positions and motivations of each party.  Some mediators will require this documents, others will allow the parties to choose to submit the document.
Right to Representation – each party participating in mediation has a right to be represented by counsel during mediation or to consult with counsel.  There may be some issues which parties feel comfortable mediating without the presence of their respective counsel, while for other issues each party may feel the need to have counsel with them.
Ex Parte Communication – any communication, either in person, electronic or written, that occurs between one party and the mediator outside of the mediation process.  Generally, ex parte communication is prohibited.
Combined Session – both parties are in a single room with the mediator throughout the duration of the mediation process.
Separate Session – each party is in a separate room during the mediation process and the mediator shuttles between the rooms.  The mediator may not spend equal time with each party, depending on the needs of the parties and the details of the case.  This is most often used in cases where there is an imbalance of power between the parties due to things such as domestic violence. 
Memorandum of Understanding – If the parties have reached a verbal agreement on any issue, the mediator can prepare a document which recites the verbal agreement and is signed by the parties and their counsel, if present.  If multiple agreements are reached, they will all be included on one Memorandum of Understanding, or MOU.  The MOU can then be filed with the Court and be made an Order of the Court.
Confidentiality – all communications made within the mediation process are confidential and should not be shared with any third party.  The one caveat to this point is that a mediator is required to notify law enforcement officials if either party declares that he/she has committed a crime or is going to commit a crime.   Communication made within the mediation process cannot be used as evidence in the case, and the mediator cannot be called as a witness or otherwise be asked to testify about specific information or offers made during the mediation session other than to testify that the parties did participate in mediation.  During the mediation process, if there is specific information that a party wants to communicate to the mediator only, such as the reason for an offer, the party should specifically inform the mediator that the information should not be shared with the other party.

 

 

Translation Tuesday: common legal terms

I remember sitting in a college course a while back on Structural Violence.  I was not enrolled in the class, I was just visiting.  I believe myself to be a smart person, but I was utterly lost.  Having never taken the class or been exposed to the subject, I had no idea what the class was talking about.  I felt like a fish out of water.  In this series, which we will call “Translation Tuesday,” we will try to ease some of the anxiety caused when you feel like a fish out of water by tackling many of the terms that you will come across as you pursue family law and estate matters.

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For our first segment, we will decode some of the common legal terms you will see in any proceeding. Many of the terms we will cross reference in other Translation Tuesday segments so keep an eye out for them.



Petition for ________ – the document or form first filed with the Court to get the case started, usually just referred to as the Petition;  this contains all the biographical information the Court needs about the parties; there are many different types of Petition’s, each of which is specific to the type of case being started
Petitioner – the party that files the Petition with the Court to start the case; typically responsible for initiating scheduling with the Court and notifying the other party of all court dates
Respondent – the party that does not file the Petition with the Court, and who is typically served with the Petition; it is not a disadvantage to being the Respondent over the Petitioner
Co-Petitioner – if both parties choose to file together, they can both sign and file the Petition, then one party is the Petitioner and the other is the Co-Petitioner
Opposing Counsel – if the other party in the case has hired an attorney, you may hear them referred to as opposing counsel; often times you will hear them referred to as ‘Counselor’ when in the courtroom
Judge – a person who listens to testimony and reviews evidence to determine and issue Court Orders on the issue before them; the final decision-maker if the parties are unable to agree on disputed issues
Magistrate – a person who listens to testimony and reviews evidence to determine and issue Court Orders on the issue before them; can only hear and rule on certain matters, such as non-contested hearings and temporary orders
Family Court Facilitator – an employee of the court who will often times oversee the Initial Status Conference; they cannot enter Orders but can set deadlines for the parties; works closely with the Judges and Magistrates
Filing fees – statutory fees that a person must pay when filing documents, such as the Petition
Docket – the courts calendar and schedule of cases and hearings
Hearing – a formal presentation of your position and requested Orders to the Court; testimony is presented to the Court and witnesses can be called to present testimony
Testimony – formally telling the Court facts and observations that will be used by the Court to come to a conclusion and enter Orders on a specified matter; you cannot lie during testimony as there are severe repercussions if you do so (think Law and Order here)
Court Order – the ruling entered by the Court on a specific issue which directs the parties how to proceed on that issue; Court Orders must be followed and are legally binding; failure to follow Court Orders can result in punishment such as fines or jail
Initial Status Conference – the parties first appearance in Court; this is not a hearing, but an opportunity for the Court to meet the parties and the parties to meet the Court; it also gives the Court an opportunity to issues deadlines to ensure the case is moving along, and to assist the parties through the process
Motion for __________ – a document or form which one party files with the Court requesting a specific action or Order from the Court; usually filed once a case has already been started, though is some cases, such as a request to change child support, it is the document which starts the case
Permanent Orders – the final Orders issued by a Court on the case; the Orders are permanent, unless they relate to children, in which case a party can always file a Motion to change the Orders
Mediation – a meeting between the participants of a case with a neutral third party, the goal of which is to reach an agreement on a specific matter or a selection of matters; the mediator has no power to enforce or require agreement, their only role is to facilitate an agreement between the parties