The Devil is in the Details

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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.

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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.

Expectations and Reactions

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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.

I filed for divorce, now I’m single! Right?

Some people believe, or maybe hope is a better word, that when they file for divorce they will immediately, or very soon thereafter be officially divorced.

I hate to burst your bubble, but this is a misconception.  Colorado has a statutory waiting period, or “cooling off” period, of 91 days.  This means that your divorce will not be finalized for a minimum of 92 days from the date of service or when the Co-Petition was filed if both parties file together.  Even in the absolute best case scenario, when the parties agree on everything and file all the required documents to start and finish the case at the same time, you cannot be officially divorced before the statutory waiting period has expired.

And now for a reality check: 92 days is the earliest you might be divorced.  If you are part of the absolute best case scenario mentioned above, there is a chance that your divorce will be finalized and the divorce Decree will be entered on the 92nd day.  However, for everyone else out there, and a majority of those who seek divorce, the process is going to be longer.  In some cases much longer.  Every county is different and some counties take a very long time to process their cases.  Each county’s processing time depends on what their docket looks like.  If they are super flooded with cases it is going to be harder to find the time needed to hear your case.  If the county has a lot of cases that settle, or that don’t need to go before a judge or magistrate, then it will be easier to find the time to hear your case.

The other factor that will impact the length of your divorce process is whether the parties are cooperative.  If one party does not follow court orders and motions are filed or extensions are needed, this is likely going to bump out the resolution of your case.  Sometimes one party will be uncooperative with the purposeful goal of delaying the process.

There are also many horror stories out there of people waiting for years to finalize their divorce.  This is usually a combination of the things mentioned above: back logged court dockets and uncooperative parties.  In addition, if your case has very complicated issues, such as a very high valued estate or serious concerns for parenting time, your case is likely to take a bit more time as experts may be needed to advise the parties and the court.

Part of what makes the waiting process during a divorce so difficult is that many times one of the parties has already emotionally severed themselves from the relationship.  Sometimes they have done so years before the process is ever started.  For these people, even though their case is moving along, it seems as if it is taking forever because they have been emotionally divorcing the other party for a long time.

I wish I could tell you that the average case takes X months or that you can expect to be divorced by such and such time, but the truth is, the only thing I can tell you for certain is that you will not be divorced sooner than 92 days…  I can tell you, as I’m sure your parents did, that “anything worth doing is worth doing right,” and we all know that doing things right takes time.  If you find yourself frustrated with the legal process and feel like it is never going to end, try to remember that you do not really want a quick resolution with “cookie cutter” Orders.  You want a resolution that takes into account your needs, your family’s best interests and your circumstances.  Keeping this in mind will hopefully give you the patience you need in the moment and the peace you need for the future.

 

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.

 

 

Navigating the (sometimes) ugly world of Co-Parenting

It can be so traumatic to end a relationship with someone you once loved. It is even more difficult when you are forced to continue to interact with that person because you share children together. Many people find themselves challenged by the prospect of having to trust someone and coordinate efforts to raise their children with someone that they just ended a relationship with or divorced. As I have said before, as a divorce attorney and mediator, I have been in the trenches while people have been forced to navigate the new dynamics of a relationship with someone they formerly loved. Take it from me, there are a few tricks out there that may minimize the hostility as it bubbles over during your efforts to co-parent with someone that on some days you would rather never see again. The motivating force is your children and the importance of at least attempting to shield them from the anger and hostility they see between their parents. Children are sponges and they will absorb and internalize the anger and hatred they see their parents exhibit. Shouldn’t every child, regardless of whether they are raised in a two parent home, or bounce between each parents home, learn to have healthy, loving relationships?

1. Utilize email rather than talking via the phone. You two used to love each other. You know each other intimately. That means you know exactly how to “push” each other’s “buttons”. Talking via the phone may lead to more unnecessary emotional outbursts. Email may keep your communication more business-like and gives you the opportunity to edit what you say to your Ex. If nothing else, when things are in writing you have a potential record or evidence of the other party’s inappropriate discourse to use as evidence at hearing. Maybe that alone will ensure that you are both on your best behaviours.
2. If email still offers your Ex an opportunity for bashing, try an on-line shared co-parenting tool like the OurFamilyWizard website. The website offers on-line shared calendars for coordinating parenting time schedules and sharing family information. This may help eliminate and minimize confusion caused by parenting from separate households.
3. Implement a parenting time schedule that requires parenting exchanges at school or some other neutral, public location. So, if you have the children overnight every Monday then you return them to school Tuesday morning. Then if the other parent has the children overnight every Tuesday, he/she can pick the children up from school Tuesday afternoon. This eliminates the occasional emotional flare up when you have to sit in your Ex’s driveway and wonder suspiciously what is going on in their household now that you no longer live there. Or, it eliminates the urge to make some rude remark when you go to pick up your children and see how happy your Ex seems without you.
4. Many arguments begin over simple miss-communications and confusion over details. Make sure that your childrens’ schools send out information to both parents regarding school events, conferences etc. This will ensure that there are no hard feelings because one party feels as though you purposely did not include them in the child’s activities. Of course that leads us to how to minimize hostility when you both attend school events and conferences, etc. If you simply do not trust yourself or your Ex, just schedule two separate conferences with your child’s teacher. Or sit at opposite ends of the bleachers at the basketball game. Your child will simply be happy that he has both of his parents cheering him on. He will just be thrilled that after he makes the winning basket and glances into the stands that his parents are not slugging each other and embarassing him.

I understand that we are only human. That means that often times we allow our emotions to get the best of us. None of us are perfect, however, when we bicker and berate our Ex in the presence of the child the only true victim is the child. Regardless of whether one party would be eligible to win the “Parent of the Year” award and the other is seemingly worthless, every child inherently loves both of their parents. Kids never enjoy listening to one parent explain how awful their other parent is, or watch as their parents disrespect each other. Remember, it is so incredibly important to shield your children from the rancor of your deteriorating relationship, beacuse whether or not you are still husband and wife, you will always be mom and dad.

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

Unsolicited Advice

My neighbor said… My best friend said…  My cousin’s brother’s hair stylist said… Much like when you have children, when you have legal problems, every person you know is likely to have tales “From my experience”, something “I heard”, or other piece of advice.  And much like when you have children, the near constant barrage of advice is likely to become tiresome.  But even more, it can become dangerous.  While most of these advice givers mean well, not a single one will have to live with the aftermath of that advice.  Whether you are contemplating a divorce, in the thick of it, or even dealing with issues regarding children, there is one very important thing to keep in mind: the only person who has to live with the outcome of your decisions is you.  While our family and friends have our best interests at heart, they are usually not thinking about what the road looks like a year from now, or 18 years from now.

The emotional journey you will make when going through a divorce or legal matter regarding children is hard enough.  Processing the horror stories of friends and balancing your own thoughts with those of your family can compound the stress and anxiety you are already feeling.

While a strong support system is invaluable to your well-being, take the first step to keeping your sanity through the process: take all advice with a grain of salt and remember the most important thing… you are going to be ok.

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