By Jamie Leaver Sawyer, Esq.
It is not uncommon for children whose parents are in the middle of a custody dispute to make comments about their fears or wishes. It is also not uncommon for parents of those children to ask that we relay those comments to the court, or have their children tell the Judge directly how they feel.
Parents are frequently frustrated when they learn that they cannot communicate this information to the court. Common follow-up questions include “How will the Judge know what my child wants?” or “Why doesn’t my child have a say in the outcome?”
The answer is not that the Court does not care about what a child wants. To the contrary, one of the factors that the Court must consider in determining what is in the best interests of the child is the wishes of the child as relates to parenting time if the child is of adequate age to make that decision. But, having a child testify or having a parent communicate that information to the court is not an appropriate method for conveying those statements. First, your child’s statements are hearsay and inadmissible in court. Second, it is inappropriate to place a child in the middle of a dispute by having him or her testify in court with both parents present.
Then how does the Court know what the child wants? The best way to ensure that your child’s voice is heard is to involve an expert, such as a Child and Family Investigator (“CFI”) or Parental Responsibilities Evaluator (“PRE”). CFI’s and PRE’s will prepare an expert report, which includes an analysis of the best interests of the child. Assuming that the child is of adequate age, the child’s wishes will be included in that report as part of that analysis. The PRE or CFI can also testify at the hearing about his or her investigation and conclusions.
So, while you cannot tell the court directly what your child says, nor can your child testify as to his or wishes, your child’s wishes will not be ignored. As long as you utilize the proper method to relay this information, his or her voice will be heard.
An excellent question by a potential new client is “Why should I hire your firm?” In response, we can talk about the diligence of our firm, our philosophies, experience, how we prepare clients each step of the way, keeping our client updated, et cetera. Famed constitutional lawyer Alan Dershowitz recently summed it up beautifully though.
In an article he authored, Mr. Dershowitz stated “To be a great lawyer requires the exercise of judgment, subtlety, nuance, and an ability to predict what the courts will do.” He truly nailed it, and the applicability of this statement to great family law practitioners is astonishing. No other area of law involves such personal matters that impact a person to the core, and the process itself, as well as the outcome, have lifelong ramifications.
With the high level of emotion a party to a divorce rightfully feels, his or her judgment is likely impaired to some degree. As a result, actions and decisions made during this time may not be the best and can actually be detrimental to the case as a whole. Some lawyers simply accept their client as found, and allow further damage to be done. Great lawyers build trust with the client, so that they can work as a team, with the client asking before acting. Further, that same type of lawyer uses sound judgment in developing the case, in messaging to all players involved, and in presenting the issues in trial. Less skilled lawyers can get caught up in the emotions, not see the forest for the trees, take a piecemeal approach, and present a helter-skelter case with more emphasis on wrong-doing than the overall goal.
This is where subtlety and nuance are imperative. These skills cannot be taught. They are developed. A great lawyer not only masters these, but continues to improve on them. The best judgment in the world means nothing if not put into action properly. Over-the-top/in-your-face filings and trial dramatics usually backfire. As much as clients may want the lawyer to stick it to the other side, an effective pleading or cross examination can be done subtly with more success. However, that is more a rarity than the norm for lawyers practicing family law. It is, therefore, part of how a client can decide between a great lawyer for his or her case, and an average or even sub-par counsel of record.
This, then, is a long way of saying that our firm should be hired because we embody Mr. Dershowitz’s definition of what makes a great lawyer. We diligently work with the client to gather relevant facts that, when applied to applicable law, offer the greatest chance of obtaining successful results. As part of that, we earn the trust of our clients and work as a team from the outset, to develop realistic big picture goals and incremental steps to achieve them. We have sound judgment, that has been developed over decades, that focuses on what facts will help, and which will not; what issues are worth fighting for and which should be dropped; and how to approach every facet of the case. We use subtlety and nuance in dealing with opposing counsel, other persons involved in the case such as witnesses and experts, and ultimately in trial if needed. Clients whose cases end up in trial consistently recognize the difference in representation at that stage the most, as the trial preparation is second to none. The presentation is professional, organized, efficient, and only on point. The big picture developed with the client step-by- step unfolds before the court (and the client). All of this, together, gives the client the best chance at a successful resolution of the case itself, while also helping them to move on in their lives in a healthy manner post-divorce.
A common question of parties going through a divorce is whether an asset they buy, or a debt the other party incurs, after the divorce case is filed, is marital. The simple answer is yes. Our statute defines the marital estate as being through entry of the decree of dissolution of marriage.
Of course there is also the complicated answer. Just because an asset or debt is marital does not mean that it must be divided with the other spouse. Our courts are required to equitably divide the marital estate. If a spouse incurs debt for his/her living expenses while the case is pending, an argument can be made that it is equitable for that debt to be just his/hers. If a spouse in sued for an accident that he/she caused, which occurred while the divorce case is pending, it can be argued that it is not equitable for the non-involved spouse to suffer any financial hit as a result. If a party charges his/her attorney fees and costs onto a credit card, and carries the balance, the argument is that that is not debt, but fees and costs that are addressed by a whole different statute. If a spouse receives a merit award, that can be treated as income for maintenance and child support calculation, or can be treated as property for equitable division. If the latter, arguments can be made, if the facts support, that such was for staying with the company in the future, so not for efforts during the marriage, or that it would be inequitable for the parties to share what was earned solely by one spouse’s hard work during the separation. If one party trades a car in for a newer one, the new one is marital, as is the financing. Argument can be made by the other, though, that the higher net equity of the two cars should be considered when equitably dividing the marital estate, even though one is now gone Depending on the facts, various arguments can be made about equitable division of the marital estate contents. The arguments do not change the simple answer that an asset acquired or a debt incurred prior to the decree entering is marital.
Now, the small print—there is an automatic injunction that goes into effect against the Petitioner upon signing the Petition and against the Respondent upon service. The Injunction, as relevant, restrains a party from transferring, encumbering, concealing, or in any way disposing, without the consent of the other party or an order of the court, of any marital property, except in the usual course of business or for the necessities of life, and requiring each party to notify the other party of any proposed extraordinary expenditures and to account to the court for all extraordinary expenditures made after the injunction is in effect. Thus, extraordinary purchases that lead to a new asset or increased debt should not be common while a case is pending.
I cannot turn on the radio or the t.v. without being inundated with political news, slants, and opinions. For some reason, it has all caused me to have an epiphany. I realize that in divorces, there is a very obvious political stance. There are very few liberals in divorce, when financial responsibility is addressed.
Before this offends you, I am not taking a political stance. Rather, the way that cases play out I realized that I have never had a higher paying spouse client simply offer up that he/she will continue to work hard, earn more and more money, and provide for the support of the less financially fortunate spouse forever. Yet, many of these same parties vote for a government that will tax the higher income earners in order to provide funding and programs to those who are less financially fortunate in our country. The lesson I take from this is why can’t we see that family is more important than strangers, when it comes to supporting them?
And, just like in politics, specifics must be considered and the true facts (not fake news) explored. In some cases, taking a position against any maintenance is very much warranted. In others, lots of money can be expended on fighting the amount of maintenance to be paid, which money could have actually gone toward the maintenance payment rather than in addition to the obligation. A realistic approach needs to be taken, wherein the higher earning spouse talks to his/her lawyer about the odds of a maintenance award, amount and duration. There are various packages than can be considered, that benefit each spouse in a different way. Plus, there are some additional positives to maintenance, such as that it is tax deductible to the higher income paying spouse while taxable income to the lower earning payee spouse. The end result is that the government makes less in taxes off the couple, which most people agree is a good thing (be it because it is pro-finances for the couple, or anti-finances for the government, or both).
Child support is less controversial, just like government programs that benefit children. Everyone seems to realize the need and have less resistance. However, the amount can be an issue of discontent. For a payor parent who complains about the amount of support being paid per the presumptive child support guidelines, I like to point out that he or she would be spending way more if primary of the child. Parenting is expensive, and children should not suffer simply because their parents got a divorce. An added benefit of child support, over governmental assistance to child-focused funding, is that it makes a direct impact on a family member versus children of strangers. These are your children you are benefitting, and that is a good thing!
As I finish this, I wonder if I should not have mixed politics and divorce. Again, I hope that I have not offended anyone. Obviously each political party has attractive qualities, and an open mind and acceptance of others’ opinions can lead to far more success than close mindedness standstills. In a divorce, like in politics, more gets accomplished when we work together than against each other. The key is to have realistic expectations, a willingness to see that that the family is continuing just in a different form, and be open to different alternatives.
I will be very direct. The internet is not the best family law attorney. There are misstatements, fact-specific anecdotes, and pure misinformation. It can be a fine starting place. A person can look up what is required for Colorado to have jurisdiction to enter a divorce decree, or see what the filing fee is. If they find a reputable site, a person may even be able to get a fairly good idea as to what child support will be. However, for accurate answers about the law, and the law as applied to the facts of a specific case, there is no substitute for an in-person meeting with an excellent family law practitioner.
One example of misinformation is as to parenting time schedules. So many people, for whatever reason, have a belief that Colorado is a 50-50 parenting state. It is not. Our law has no presumptions as to a certain parenting schedule and, instead, each parent has the burden of proving why the plan he/she proposes is in the specific child’s best interests. Anything you read on the internet to the contrary is wrong.
Another common misunderstanding is that common law marriage is based upon how long parties have resided together. That simply is not true. Common law marriage in Colorado turns on whether the parties held themselves out as husband and wife to their community with the intent to be married. Examples are whether they introduced their mate as a spouse, told family, friends and co-workers that the two are married, and filing married status on tax returns. Length of cohabitation has nothing to do with it. Anything your read on the internet to the contrary is wrong.
Colorado has recently passed amendments to the maintenance statute. An urban myth has become that the statute contains mandatory calculations for maintenance, which are set in stone. That is simply not accurate. The statute has advisory guidelines, and nothing more. They are a starting point for the court and the parties to consider—that’s it. The specific facts of a case may make maintenance not applicable despite the advisory guidelines, or applicable regardless of what the starting advisory guidelines reflect. Similarly, the amount and duration of maintenance are very fact specific. Anything your read on the internet to the contrary is wrong.
The biggest disservice to pro se parties, in my opinion, are the self-help forms that can be found on-line or at a courthouse. The intentions behind these were good, but the actual implementation has not yielded the intended results. The forms are too simple, so that the specifics of a particular marriage are not obviously addressed. I have developed a special niche within my practice, as a result of parties who used the forms and handled their case pro se hiring me after-the-fact to try to fix what they got wrong using the forms. Sometimes what they seek cannot be fixed, as certain terms within an agreement are final and nonmodifiable. Terms that can possibly be fixed, such as parenting time, will be costly and the damage that has occurred may not be able to be repaired. Another unanticipated result of these forms is that people just keep the litigation going, finding forms for modification and contempt and other actions, without the necessary understanding as to whether their facts support the requisite relief. This ongoing conflict is actually the number one component reflected within research as to harm to children of divorce.
Spend a little money, and meet with a reputable family law attorney to get a basic understanding of what the actual law is and how it is applied to specific facts of your case. Get an understanding from an actual expert in the field about what the odds are, chances of success, and potential risks of any chosen path. It is truly cheaper, financially, emotionally and physically, to get it right the first time. Plus, the internet does not carry malpractice insurance.
Having just celebrated my daughter’s high school graduation, the parties, and the honors banquets, I now turn my focus to her next big step– college. The cost of tuition, housing, meal plans, and add-ons is simply daunting. It made me think about so many divorce cases, where parties spend at least one year’s college tuition in fees and costs and sometimes the equivalent of a four year degree. Don’t get me wrong; sometimes that is the best money spent as the potential risks to the children with the “wrong” parenting plan can be even more costly. The emotional damage can usually not be repaired and have a lifelong impact, and attempts at addressing the harm that occurred can cost greatly via a lifetime of therapy. Sometimes, these children fall within the bleak statistics of children of divorce, getting caught up in drugs and alcohol, self-harm, and dropping out of high school. In the cases that present that level of risk, it is best to spend the necessary money up front to give the children the best chance at success despite the divorce.
For the rest of the cases, though, a parent needs to look at whether the cost of fighting during the divorce is really worth it. Some parents will say that they had to let their children know that “I fought for them.” It would be better if the children knew that the parents worked cooperatively and put the children’s interests first. This issue seems most present in two-state parenting plans. Children of a younger age tend to be primarily attached to one parent. This does not mean that they have a poor relationship with the other parent. This attachment is simply basic human development. If that parent is the one seeking to live in another state, the odds are that the court will name that parent the primary parent post-divorce and the child will be moving. To do otherwise risks the child’s current, as well as future, emotional health. Put another way, having the child a distance from the secondary parent attachment will do less harm to the child than removing the child from the primary attachment to remain in Colorado. Courts are very careful to enter orders that pose the least harm to a child. Why can’t parents see it the way the law does? Yes, there is an emotional factor, but like anything in life, one must look at the reality of the situation. No matter how much money the parent spends to stop the child from getting to move, the child’s developmental and emotional needs will prevail.
The better use of that same money is to 1) move as well; or 2) save for trips to visit the child in his/her new town of residence; and 3) save for the child’s college education. In a contested two-state initial parenting determination—to be very honest—the lawyers benefit most. It is better for the parent to use their money instead for their own children’s college education, rather than the college education of the children of the lawyers involved.
The moral is to have a realistic look at what the child’s parenting history and attachment have been, and make decisions based upon the child’s emotional and developmental success. Fighting just to show you fought is useless, and does not put the child first (which is what your child actually needs).
Why is it so hard to say that two letter word? No. No! No. Many parties going through a divorce are put in positions where they need to say exactly that – no. This often arises when the soon-to-be spouse asks a favor of them, or their lawyer offers a settlement suggestion, or a question is posed when testifying.
It is okay to say no. It really is. Oftentimes, not only is it okay, but it is a good thing. Boundaries need to be established as the intact marriage is morphing to a divorce. Declining a request from the spouse starts firming those boundaries.
A lawyer is simply to advise the client. The client gets to make the final choices. If the lawyer makes a suggestion, the client has every right to disagree. It is the client’s case, the client’s life, and the client’s facts that are known by the client better than anyone else. Lawyers appreciate an actual discussion with clients, and this kind of frank talk usually evolves into a team effort with a thorough plan.
If the answer to a question is in the negative, the fact that it is asked on the stand does not change the accuracy or appropriateness of the answer. It is okay to say no in testimony, as long as it is accurate. If there is a need to explain the answer, counsel can assist with follow up questions.
Perhaps the greatest need for saying “no” is when, during the divorce process, a party is simply overwhelmed. That can happen with deadlines, and emotions, and concerns about the future, and trying to keep life normal for the children, and, and and… When asked to do something more, such as man the school bake sale or run carpool, it is okay to say no. In fact, it is a good thing.
By Brenda L. Storey, Esq.
With Easter upon us, a good topic of discussion is how to divide holidays with children upon divorce. There is no right answer, and one size does not fit all. I find that the starting point is to look at how the intact family celebrated holidays.
If holidays were spent with extended family outside the state, defining the holiday by just the day upon divorce interferes with traditions. Under that kind of history, the holidays so enjoyed should be defined as a block of time. For example, Easter and Thanksgiving could be defined as the entire weekend from when school lets out to the morning school resumes. Christmas could be for a four day period. These blocks of time are then alternated on an annual basis.
If holidays were spent locally, the holidays could be defined as just the day, and alternated each year. Another option I like is to have each parent get to celebrate each holiday with the children every year, by adding the day before or after. So, for Easter, one parent has Easter Saturday and the other has Easter Sunday and they alternate the next year. Thanksgiving has Thanksgiving Thursday and Thanksgiving Friday. Christmas is Christmas Eve and Day.
Some holidays are just not important to one parent, so why keep the children from celebrating it with the other parent every year? Some holidays are not really kid holidays, such as New Year’s or a parent’s birthday, so thought needs to be put into whether it needs to be shared. Some holidays are short in duration, and are really for the child, such as Halloween. Think through whether it is truly necessary to divide that up each year, or alternate it, with the focus being the child’s desires. Also, as children grow up, their focus changes, such as being with friends (and neither parent) trick-or-treating. They should be allowed that pleasure despite their parents’ divorce.
However you holiday, we wish each and every one a blessed Passover, Good Friday, and Easter.
Nearly three years ago, my mom died of cancer. To say that she was truly unlike any other would be an understatement. She was incredibly accomplished and hard-working, shattering the glass ceiling and serving as our city’s first female mayor for eight years. She always went above and beyond, and you could literally feel the love and dedication she put into each and every thing she did in her life. She was the most selfless person I ever knew, going so far as to plan her own funeral so that we didn’t have to. She was an extraordinary person and there was not one person she encountered in her lifetime whose life she didn’t impact. But, most importantly, she was my mom, and losing her was the hardest thing I ever experienced.
So, with the hope that one day nobody ever has to endure such a devastating loss, I run. In honor of my mom, I’ve made a promise to myself to spend the rest of my life fighting this terrible disease by combining my love of running and my passion for finding a cure. I have vowed to participate in at least one race a year as a charity runner for an organization whose mission is to find a cure for cancer.
I ran the Chicago Marathon in October and it was one of the greatest experiences of my life – not because I actually enjoyed running for 26 miles straight, but because I ran as part of a group of people passionate about fighting cancer. I ran as a charity runner for the American Cancer Society and, together, those of us who ran for this organization raised nearly one million dollars. It was an unbelievable experience, and that alone made all the pain and hard work worth it. So, until we find a cure for cancer, I won’t stop running – running for those who lost their fight against cancer, for those who are currently fighting it, and most importantly, for a cure.
Most mornings, it’s hard to convince myself to wake up and run somewhere between 10 and 20 miles. With every mile, I question whether I am capable of taking even one more step. Training for and running a marathon is very challenging, both mentally and physically. But, when I remind myself why it is that I run, it’s almost impossible for me to stop running. And until we find a cure, I won’t.
When parents go through a custody struggle, emotions abound. Oftentimes, well established roles from during the intact marriage give way to new, independent roles. This newly acquired independence can stoke the emotional fires. Yet, the parents will need to raise their children together long after the litigation ends. To assist, I say to my clients to let their soon-to-be spouse be mad at me.
This anger is most often seen in cases where one partner was the more dominant one or used emotional blackmail to get his/her way. When the other partner is able to “get away” and clear her/his head, there is a realization that the previous relationship roles were not healthy and do not have to continue in the same form. When that epiphany hits, the other partner loses control. Such loss of control can take many destructive forms, from resorting to upping the manipulation tactics to flat out anger. Usually, that partner genuinely believes that the now independent one is wrong, and must be listening to the wrong people or having their strings pulled by someone else. They simply cannot accept that the person who had been in the previously dependent and/or controlled role could make such distancing decisions. The anger, then, is directed at who must have brought about this change, which the manipulator does not see as positive change. The target is usually the partner’s attorney.
Those with cleared minds can get upset that their chosen independence is not being credited to them. Or, they become protective of their lawyer, as they see what they have endured in a whole new light and do not want anyone to experience what they had. However, the controlling/manipulative partner will never understand, or accept, the free-thinking independence, nor does that matter. So, why not let the lawyer be blamed?