The Hulse Law Firm is committed to provide the service our clients have come to expect and deserve. The safety and well-being of our employees and clients is of the upmost importance. During this tough time, we will remain open for business and will continue to accept new clients. Currently, we are happy to offer 30-minute free telephone consultations. If you would like to schedule a consultations, please call us at 720-773-2900.
Approximately 70-80% of people reach divorce and custody agreements without an attorney. Often this is because they are amicable and wanting to get along. Other times it is purely because of a lack of resources to pay for legal services. Despite this, there are often problems that arise after these agreements, which can rise to the level and need of retaining an attorney to “fix” what was originally agreed to. Below is a list of 5 common pitfalls we see in divorce and custody agreements that are drafted without an attorney.
- Tax Agreements. Sometimes we see rather than alternating claiming a child annually for tax purposes, parties will agree to something outside of the norm. For example, parties will agree that one person claims the child annually and they will split all refunds. Unfortunately, there are too many games that can be played with tax refunds. The person getting the “refund” could take out less tax than usual from his or her pay. This results in them receiving more money in their paycheck rather than splitting a larger refund as intended by the parties. It is best not rely on splitting tax refunds after the divorce is finalized. This typically results in future problems.
- Agreements Regarding Real Estate. Often we see agreements regarding real estate that do not include all the issues that could arise. For example, we will see the person who keeps the house refinance the home to take the other person off. There are many questions that are not answered and can be difficult to get changed by the court once the agreement is made. How long does the person have to refinance the home? What happens if he or she is unable to refinance? Which realtor do you use? What repairs do you agree need to be made to the house? Who pays for the repairs? What if the person keeping the house doesn’t make the mortgage payment? How much will the house be listed for? Who pays for refinance costs or closing costs?
- Agreement Regarding Retirement Accounts. We sometimes see parties agreeing to divide up a retirement account equally, but then failing to explain how it gets divided. Can it be done by a QDRO which will avoid tax consequences? Who pays for the QDRO? How long does that party have to initiate the process of the QDRO? On what date does the value of the retirement account get divided? There are many issues to consider when dividing a retirement account that can be forgotten in an agreement entered by parties without an attorney.
- Holiday Parenting Schedules. One of the most litigated issues is regarding holiday parenting time. Parents often believe they can make arrangements that are in the best interest of the child, but fail to take in to consideration how radically both their lives will change, typically within a few short years after their relationship is dissolved. Stepparents come into the picture, new family structures, events, traditions, relocation, etc. We believe it is the best practice to put as much detail regarding holiday parenting time as possible. This can be the “default” if the parties cannot reach an agreement regarding holidays. There is nothing that says you must follow the agreement. If you and your ex agree to something that is better for the kids during that particular holiday that is great, but having a very detailed holiday agreement will resolve any issues that my surface.
- Transportation Agreements for the children. Often, in an attempt to get things “done,” a party will reach an agreement that he or she will do all the transportation of the children. This is usually because the parties live 5 minutes apart and it is not a big deal. However, parents end up moving apart from each other. These types of agreements (or lack thereof) can substantially affect a parent’s day-to-day life in ways that were not imaginable to him or her at the time of reaching the agreement. It is typically a good idea to enter a detailed agreement regarding transportation that is fair for all parties.
Although you may be getting along with your soon-to-be ex, it may make sense to have an attorney review an agreement you have reached before signing it and filing it with the court. At Hulse Law Firm, we help people out on an unbundled basis to review and draft agreements. Avoiding pitfalls can save you time, money, and unanticipated heartache in the future. For a free consultation, please call 720-773-2900.
Colorado Law provides a statute where a parent can restrict the other parent’s parenting time if the child is physically or emotionally endangered. There are many cases where this would be appropriate and is in the best interest of the child to restrict a parent from unsupervised parenting time, at least on a temporary basis. Even though this may be good for the child, getting the court to restrict a parent’s time is not necessarily an easy task. Below are the 5 reasons why it may be difficult to restrict parenting time:
- Child Hearsay. You may have a difficult time restricting the other parent’s parenting time if all your reasons are based on what your child has told you is happening in the other parent’s house. Your child may be accurately reporting things that are going on in the other parent’s house, and these things may be very concerning, but, for the most part the court will not listen to this evidence based on the “hearsay” rule. It is very difficult (often impossible) to get into evidence information you only know from what your child has told you.
- Patient-Therapist Privilege. You may have a difficult time restricting the other parent’s parenting time if all your reasons are based on what your child has told a therapist. The therapist may have cause for concern, and may be willing to testify for you, but a therapist cannot tell the court this information because it is confidential and privileged information. The only exception is if there is a waiver of this privilege. If parent’s share joint decision-making, the court may not allow one parent to waive this privilege if the other parent is unwilling to do so. As a result, the Court cannot allow the therapist to testify.
- Not Imminent. For the Court to restrict a parent’s parenting time, the Court must find that the concerns are imminent. So, if the bad behavior took place months ago and the other parent is just now trying to restrict parenting time, the Court often will not restrict parenting time even if the Court might have months ago if the motion was timely filed.
- Not the Least Restrictive Means. The Court can restrict a parent’s parenting time, but only with the “least restrictive means” possible. What does that mean? Essentially, the Court is bound to give a parent as much of his or her parenting time as possible without harming the child. Because of this the Court is often looking for ways to stop the bad behavior from affecting the child without actually restricting a parent’s parenting time. For example, if a court has a substance abuse problem, the Court may require testing before parenting time and permit the parent to have parenting time so long as all tests are taken and negative.
- Constitutional and Statutory Right to Be a Parent. When the Court is reviewing these cases, in the backdrop the Judge is considering that each parent has a constitutional and statutory right to be a parent. Accordingly, the Judge has a duty to protect those rights for a parent and unless the other parent has met all the requirements to show that the child is imminently being emotionally and/or physically harmed, the Judge must continue providing the parent with court ordered parenting time.
Despite these difficulties, sometimes it is appropriate and necessary to file a motion to restrict and there may be ways in your specific case to prevail on a motion to restrict. If there are legitimate concerns but we think a client will not prevail on a motion to restrict, we often suggest taking other legal action. If you would like to discuss your situation, please call 720-773-2900 to schedule a free consultation.
Let’s face it, 95% of the time fights over personal property are about way more than the item itself. They are about fairness, equity, sentimental value, spite, control, anger, and revenge. Despite this, divorce attorneys are often brokering deals between parties regarding items of small value at a high hourly rate.
At the Hulse Law Firm, we highly recommend trying to negotiate the division of personal property with your soon-to-be ex, without getting your attorney involved. Also, if you believe that the other party may take, hide, or steal important (but essentially valueless) items from you during this process, we recommend that you put these items in a storage unit to safe keep until everything is divided upon finalization of the divorce.
If there are is a significant amount of personal property that cannot be agreed upon, we often put into the agreement that a third-party mediator go to the house to help facilitate the division of personal property. This ultimately saves time and money for the parties that are high conflict.
Below is a list of the 10 craziest items of personal property that I have seen fought over in the last 10 years of practice:
10. Sewing Machine
9. Book shelves
8. Christmas Ornaments
7. Orange ladder
6. Harry Potter books
5. Kimono
4. Woman’s Coach purse (yes, the Husband wanted it too)
3. Sex toys
2. A cat named Peaches
1. A Cat’s ashes (Not Peaches)
At the Hulse Law Firm, we often have cases where one of the party’s owns his or her own business. This is a unique situation, and often requires additional experts to get involved to value the business (which are called “business evaluations”, and sometimes, to determine what the owner’s actual income is for the purposes of determining maintenance and child support.
When a spouse owns a business, it is very difficult to determine the “value” of that business without an expert involved. Almost every business has some sort of value to it, and the person keeping the business is keeping the value of the business, in the same way the person keeping a retirement account keeps the value of the account.
Oftentimes, the spouse not keeping the business, will get compensated for that value by getting more of another type of asset, or by receiving a payout over time for half the value of the business.
Additionally, an expert can look at the income of party who owns the business if there are concerns that a) a business owner is claiming more deductions than he or she should, b) a business owner is running personal expenses through the business, or c) there is a concern the owner is hiding earnings.
It is important to note that a business can often be valued at 1-3x the annual income the business produces, so it is almost always advisable to have an expert value the business if you are the spouse that will not be keeping the business in the divorce. This is not always the case,
If you or your spouse has a business, it would make sense to schedule a free consultation with an attorney to discuss the specifics of your case and to determined whether a business evaluation is needed. Please call 720-773-2900 to schedule a consultation. For more information on the Hulse Law Firm, go to https://www.hulselawfirm.com/
Hulse Law Firm | Mediation
Mediation is typically less costly, both emotionally and financially, than hiring attorneys and battling it out in the courtroom. At Hulse Law Firm, PC, we are attorney-mediators, and we enjoy helping you and your spouse reach resolutions in a mediation setting. Given our background as family law attorneys, we can give you a unique perspective of how courts typically resolve matters–this empowers you to make decisions without leaving matters to a judge who will only meet you for a few hours before making life altering decisions on your behalf. Call 720-773-2900 to determine whether mediation is right for you.
Mediation Services
We set up one or multiple mediation sessions based on the needs of your case, with a minimum session of two hours at a time. We generally conduct mediation at our office. If you and your spouse are unable to be in a room together, for whatever reason, we can go back and forth between two rooms to try and get matters settled.
For divorce cases, not only can we assist you in reaching parenting time and financial agreements, but we also can assist you with all the documents you need to file with the Court to get the divorce finalized.
We also help clients who have issues that come up regarding custody, parenting time arrangements, and child support matters.
Setting Up Mediation
If you and the other party know that mediation is right for you, we would be happy to work with you. Call 720-773-2900 to schedule either a consultation or to set up mediation or send us an email.
Call 720-773-2900 to Schedule a Free Consultation to learn about your options for divorce and custody mediation.
PERA and Divorce:
In Colorado, some state employees receive a PERA retirement account. For example, this is a common asset for teachers and school administrators. Part of the PERA retirement is a pension that is received on a monthly basis upon retirement. This can be a very large asset in the divorce.
It is important to get the PERA valued by an expert. The face value of the asset on the statement is typically not accurate. The value is usually 2-3 more than what the statement says the value is (though this is dependent on different circumstances).
The asset can be divided in different ways. First, it can be divided by the “time/rule formula.” This is the basic formula:
Time earning the PERA account while married
_____________________________________ X 0.5 = percentage of asset to be given to spouse
Total time earning the PERA account
Oftentimes, parties will determine this percentage, and upon retirement, the spouse will receive his or her share on a monthly basis.
We can also offset the total value of the PERA asset with another asset. So if the PERA account is worth $100,000 and there is another retirement account worth $100,000, the spouse receiving PERA would keep his account and the other spouse would keep the other retirement account. (Taxes usually would need to be evaluated when determining whether the two accounts are actually equal).
PERA accounts can be complicated to value and divide in a divorce. They, however, are usually very valuable so it is important to not give up your right to this asset without proper analysis and negotiation. If you have any questions regarding your PERA account in a divorce, please call 720-773-2900 to schedule a free consultatio
At the Hulse Law Firm, PC, we recognize that a divorce impacts many areas of your life, and the legal aspect is just a small part of the journey. I will be providing those that are thinking about a divorce, going through a divorce, or wading through life just after a divorce with some information and resources about those non-legal issues that impact your life through a Guest Blog Series.
For my first guest blog, Kristi Sullivan, a financial advisor, will be answering some common questions my clients have about financial planning and a divorce. She will talk about divorce and financial planning. Below is a link to her biography if you want to contact her directly or get more information.
What are your top tips for reorganizing your financial life after divorce?
First, get a realistic picture of your new income versus spending. Likely you will need to cut back on your housing spending, kids’ expectations will need to change, and savings jumpstarted. Don’t waste time thinking about what used to be or regretting what you wish were different. Start from now and move forward in the new reality. Get financial advice if you need it.
Any tips regarding the house in the divorce? Yes, I have a very strong opinion on that. Ninety nine percent of the time, the marital house should be sold and the equity divided. Use the proceeds to buy a new, smaller house that you can afford on your own. Get away from the emotional baggage of the location of the end of your marriage. Many women try to hang on to the house to avoid disrupting the kids. However, alone one spouse usually cannot afford the payments and upkeep of a home that two people were supporting before. Also, instead of getting an asset like an IRA account, you’ve gotten a liability in the form of a mortgage. Face it, the kids are already disrupted. Having their mom or dad super-stressed out about losing a home to foreclosure is not going to help the kids’ transition to post-divorce life.
Additionally there is nothing wrong with renting for a year or so while you figure out your new life. There may be a move in your future for a job. Or you just don’t have the mental and financial space to deal with home repairs. Renting is a nice way to take a breather and not rush into financial commitments that are hard to get out of.
What does your business provide to help people after a divorce? My business offers unbiased money planning for an hourly or project based fee. I won’t try to sell you expensive investments or insurance products you don’t need. I provide a safe, judgement-free place to discuss your financial fears and concrete steps to move forward financially after a divorce.
Bio: Kristi Sullivan, Certified Financial Planner ™ is the founder of Sullivan Financial Planning, a fee-only financial planning firm dedicated to helping clients achieve life goals in a fiscally sustainable way. She has been helping people achieve financial security since 1996, working at Great-West Life and Fidelity Investments before starting her own firm in 2007. For more information, please visit www.sullivanfinancialplanning.com
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Divorce and Domestic Violence: “Don’t Touch”
Divorce, at the very least, is an emotional time for anyone going through the process. Unfortunately, it is a time where your emotions can get the best of you.
Imagine a scenario where you are in the process of a divorce and you need to speak with your still current spouse. They don’t want to speak to you and ignore you by text messaging on their phone. You reach out and take the phone from your spouse in an effort to get them to talk to you…Have you committed a crime?
Imagine that you find out that your significant other is having an affair and when you confront them they admit to you that they have been unfaithful. Your emotions get the best of you and you slap them… Have you committed a crime?
Imagine that your significant other hands you divorce papers. Your upset and hurt and as you confront them about the divorce you punch the wall in front of your spouse, causing the dry wall to crack…Have you committed a crime?
The answer to all three questions above is “yes” and more importantly they can all be considered acts of domestic violence. In the first scenario, by knowingly preventing the sending of a message via telephone you have committed obstruction of telephone service, a class one misdemeanor[i]. A fairly easy offense to commit even with completely benign intentions. The second scenario shows an act of harassment or possibly third degree assault, class three and class one misdemeanors respectfully[ii]. Finally, the third scenario demonstrates criminal mischief, knowingly damaging real or personal property of another or property jointly owned, and depending on the value of the thing damaged could be filed as a felony[iii]. Further, if any of these acts were committed as a method of coercion, control, punishment, intimidation, or revenge they can be found to be acts of domestic violence (not including scenario two; an act or threatened act of violence qualifies all by itself)[iv].
All three of these scenarios can happen to the best of us so it is important to keep in mind a simple piece of advice, “don’t touch”. Don’t touch their phone while they are using it. Don’t touch them with the intent to cause pain or injury, or to annoy or alarm. Don’t touch that item if you think you might break it. Divorce can be difficult and emotionally tasking, there is no need to add to the stress by incurring a criminal matter.
[i] C.R.S. § 18-9-306.5
[ii] C.R.S. § 18-9-111 and C.R.S 18-3-204
[iii] C.R.S §18-4-501
[iv] C.R.S § 18-6-800.3
(written by Andrew LeClere)
Appeal on Maintenance Statute
The Hulse Law Firm, PC recently represented a party in an appeal that was published. Being “published” means the trials courts are to review and apply a published case when similar issues arise in their courtrooms. One of the main issues on appeal asked the court to analyze a portion of the fairly new maintenance statute that was enacted on January 1, 2014. (see link for full opinion https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2016/14CA1460-PD.pdf)
The maintenance statute is fairly lengthy, but this appeal focused on one small portion of the statute which states:
The amount of maintenance under the guidelines is equal to forty percent of the higher income party’s monthly adjusted gross income less fifty percent of the lower income party’s monthly adjusted gross income; except that when added to the gross income of the recipient, shall not result in the recipient receiving in excess of forty percent of the parties’ combined monthly adjusted gross income. (emphasis added)
What does this mean in layman’s terms?
Example: Husband earns $3000 a month
Wife earns $10,000 a month
According to the first part of this paragraph, maintenance is calculated as $4000 – $1500 = $2500 maintenance to Husband
However, the second sentence limits the amount of maintenance: Husband cannot receive more than $5200 a month in his income and maintenance (which is 40% * $13,000 (the total amount of maintenance) Given this, he can only receive $2200 in maintenance, rather than $2500 as calculated according to the first part of the paragraph.
Accordingly, although the first sentence provides a formula for determining maintenance, the second sentence “caps” maintenance in certain cases.
In the appeal, Husband argued that because the statute used mandatory language like “shall not…,” that the “cap” should be a mandatory limit to what courts can order for maintenance in cases.
The appellate court disagreed with this argument, but stated it was a case of first impression, and thus published it to provide guidance for trial courts in Colorado. The Appellate Court reviewed this language in statute as a whole and determined that the guidelines are advisory, including the language of the “cap.” This means despite this formula, and despite the language “shall not,” a trial court has absolute discretion in determining maintenance in any given case, including if it wants to exceed the formula.
Bottom line: While this may be confusing, basically it means that the Court needs to review the guideline formula (including the “cap”) but can still, within its discretion after reviewing the other factors in the statute*, award any amount of maintenance it deems appropriate.
*For more information on the other factors in the maintenance statute, review §14-10-114, C.R.S. and http://www.hulselawfirm.com/spousal-maintenance-colorado/
