Denver Family Law Blog

What is a qualified domestic relations order (Q.D.R.O.)?

By Chris Bui

06
January
2012

A qualified domestic relations order (Q.D.R.O.) is a legal order following a divorce or legal separation that apportions and changes partial ownership of a retirement plan giving the divorced spouse their share of a claimed marital asset. Q.D.R.O.'s are often intricate and time-consuming matters for parties and their attorneys.

When dealing with a Q.D.R.O., the first question to ask is what kind of retirement benefit plan do you or spouse have? Knowing the kind of retirement benefit plan is important when dealing with a Q.D.R.O. Next, the type of retirement plan can determine whether or not a Q.D.R.O. is necessary. For example, an individual retirement account (IRA) or simplified employee plan (SEP) does not require a Q.D.R.O. Another question to ask is whether the retirement plan can be divisible by Q.D.R.O. Once there has been a determination that a Q.D.R.O. is necessary, there must be a determination made for: the date of division; adjusted award amount for earnings and losses; who will be a surviving spouse; are there any loan balances; who is entitled to subsequent contributions after the establishment of the Q.D.R.O.; and finally, who is preparing the Q.D.R.O.

A Q.D.R.O. can cause problems far after a divorce or legal separation has been finalized. If you have any questions concerning your spouse's retirement benefits or have been discussing a Q.D.R.O. and would like assistance, please contact our office.

Tags: QDRO, assets, divorce, legal separation, qualified domestic relations order

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Are prenuptial agreements detrimental to marriage?

By Chris Bui

05
January
2012

Are prenuptial agreements detrimental to a marriage?

A prenuptial agreement sets forth the division of assets and responsibilities of a marrying couple should their marriage result in divorce. It allows parties to protect existing valuable assets from being included in the division of assets accrued over the duration of the marriage. While it is beneficial for some, is it necessary for most couples getting married? Celebrities and athletes would argue it is very important. For example, a Hong Kong woman recently received a $156 million USD divorce settlement from her husband of eight years. The article does not disclose whether there is a monthly spousal maintenance award included or separate from the divorce settlement. Hulk Hogan recently found out that his former spouse will be taking 70% of the liquid assets amounting to a little under $7.7 million USD. Kobe Bryant anticipates his wife will receive $75 million USD not including spousal and child support obligations because the parties do not have a prenuptial agreement.

Some may argue that the existence of a prenuptial agreement sets forth a bad precedence for the marriage; that the party wanting a prenuptial agreement does not trust their soon-to-be spouse or does not expect the marriage to last forever. Others may argue that it encourages parties to establish open communication about their assets with the other spouse because failure to provide fair and reasonable disclosure of property may result in an unenforceable premarital agreement. Under §14-2-307(1)(b), C.R.S., "a marital agreement . . . is not enforceable if the party against whom enforcement is sought proves that: . . . (b) Before execution of the agreement . . . such party was not provided a fair and reasonable disclosure of the property or financial obligations of the other party." Therefore, if there is a question as to assets, entering into a premarital agreement requires parties to disclose fair and reasonable disclosure of their assets.

What is your take on the idea of having a prenuptial agreement? Does it set forth a bad precedence for the marriage or does it allow parties to openly communicate about their assets prior to marriage?

Tags: alimony, divorce, marital assets, prenup, prenuptial agreement, spousal maintenance

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Discussing sexual abuse with your child

By Chris Bui

03
January
2012

The recent child abuse allegations at Penn State, Syracuse, and around Colorado, while unfortunate, sheds light on an issue not often discussed between children and parents.

This article from the Juvenile Justice Information Exchange discusses how parents can increase their awareness for signs of child sexual abuse. The article further encourages maintaining open dialogue with your children because they will feel more comfortable approaching you with concerns or problems. The article also tells parents to pay attention to changes in physical behavior and movement if communication with your child is difficult.

If your child approaches you with allegations of sexual abuse you must not become visibly enraged or dismissive at what they are telling you. They may confuse your emotions as being directed towards them. Instead, this article from GoLocalProv.com advises that you tell your child that you are listening to them. Remember, your child relies on you for security and comfort. Becoming angry or dismissive may make matters worse.

Parents, if you need help or suspect sexual abuse to your child, contact local authorities or organizations that can offer help and guidance for you and your child(ren). These calls are confidential.

Adams County - (303) 412-8121
Arapahoe County - (303) 636-1750
Denver County - (303) 944-3000
Douglas County - (303) 663-6270
Jefferson County - (303) 271-HELP/4357

If you suspect your child has been sexually abused in a school setting, please contact local authorities immediately. Further, if you would like to know about your legal protections, please contact our offices. Our attorneys can help address your concerns.

Tags: assistance, child abuse, help, scandal, sex abuse

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What is a common law marriage in Colorado?

By Chris Bui

11
November
2011

The state of Colorado recognizes and defines common law marriage as "a social relationship between a man and a woman meeting all the necessary requisites of a marriage not solemnized, performed or witnessed by an official authorized to perform marriages." A common law marriage in Colorado is valid for all purposes and is treated the same as a ceremonial marriage. Only death or divorce can terminate the common law marriage.

In order to establish a common law marriage, there must be:

(1) an intent of both parties freely given to become married;

(2) a public declaration by the parties or a holding out to the public that they are husband and wife;

(3) continuous cohabitation together as husband and wife (this means consummation of the marriage);

(4) both parties must be capable of entering into the marriage relationship. (i.e. neither party is already married); and

(5) known within the community as being married.

Contrary to popular belief, there is no special time limit to establish a common law marriage unlike some other states. Colorado also does not have a specific statute for common law marriage.

Establishing a common law marriage in Colorado provides recognition for income and property tax purposes, registration as husband and wife on applications, leases, contract forms and hotel/motel registers.

There is no official certificate of common law marriage, but parties may provide a signed and notarized affidavit swearing to the marriage when proof of marriage is required.

If you and your significant-other, or a couple you know, would like to establish a common law marriage through an affidavit, our attorneys at Stowell P.C. can help. Please contact us today.

Tags: cohabitation, common law, marriage

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Grandparents' Visitation Rights

By Chris Bui

10
November
2011

I recently came across some articles from around the country touching on the issue of grandparent rights and it got me thinking, how does Colorado handle grandparent rights? Under § 19-1-117, C.R.S., a grandparent can seek a court order granting him or her reasonable grandchild visitation rights under the following,

- If the parents' marriage is no longer valid or the parents have been granted legal separation.

- If there has been a child custody determination or allocation of parental responsibilities.

- If one of the parents of the child has died.

Further, once the court has received all required documents along with the grandparent's motion the court may grant visitation based on the best interest of the child. It is imperative that the grandparent produce all relevant materials and facts to the court. Under Troxel v. Granville, 530 U.S. 57 (2000), the court is the final arbiter in determining the best interest of the child based on the evidence and materials presented.

If there is an issue regarding the non-compliance of a court order allowing grandparent visitation rights, § 19-1-117.5, C.R.S., provides grandparents the right to bring a motion before the court to enforce the court order. If the court finds non-compliance by the offending party, the court has a wide variety of orders it can issue such as mediation, posting bond, imposing a fine or jail sentence.

Lastly, a grandparent may seek legal custody of their grandchild under § 19-1-117.7, C.R.S. Upon consideration to the grandparent(s), a court will consider the grandparent's past conduct of child abuse or neglect including, medical records, school records, police reports, information contained in records and reports of child abuse or neglect, and court records.

If you or someone you know is seeking to enforce their grandparent rights to see their grandchild please contact us at Stowell P.C.

Tags: best interest of the child, grandchild, grandparent

Comments: 2

Trial Marriage? - Mexico City proposes two-year marriage licenses

By Chris Bui

09
November
2011

Apparently Mexico City lawmakers want to curb increasing divorce rates in the city by giving newlyweds the option of getting a two-year marriage license. Apparently, half of newlyweds in Mexico City get divorced within the first two years and this is the lawmakers' best idea.

The proposed idea allows couples to set a pre-determined duration of two years for their marriage prior to getting married. So if a couple only wants to be married for two years rather than a lifetime, they can do so without worrying about filing for divorce after two years. The couple is free to go their own ways once two years have passed and the couple does not wish to renew their vows. The article does not mention whether there is a renewal process for additional years or a more permanent option will be made available.

Many are outraged at the idea stating that it contradicts the nature of marriage. But that depends on who you ask. Many individuals have different views on what the "nature of marriage" involves. Others believe it to be a hoax and are in disbelief. It is an interesting concept to grasp. As a newlywed, I can remember how nervous I was when I proposed to my wife (girlfriend at the time). How awkward would a two-year proposal be for both parties? "I love you and want to commit myself to you and you to me, but just for the next two years."

What are your thoughts on this Mexico City proposal (pun intended)? Are there any benefits to this plan? Is it worth looking into in the United States or is it an absurd idea? We would love to hear from you.

Tags: divorce, trial marriage, two-year marriage

Comments: 1

What is a marital agreement or "pre-nuptial"?

By Chris Bui

08
November
2011

Don't laugh, but the recent divorce of a famous celebrity and her basketball player husband got me thinking about marriage contracts or better known as "prenups." Although the couple had a prenuptial agreement, I was curious what would happen if it were considered invalid or unenforceable. What would make it unenforceable? What would happen to their assets if that were the case?

In Colorado, Title 14, article 2, part 3 of the Colorado Revised Statutes sets forth the Colorado Marital Agreement Act. A marital agreement or "pre-nuptial agreement," is entered into prior to marriage or during the marriage, but before divorce proceedings have commences. The agreement must be signed by both parties and involve complete disclosure of property and financial obligations if applicable. The marital agreement becomes effective upon marriage by the parties if signed by both parties or if it contains the parties' signatures if they are already married. If the parties entered into a marriage later declared invalid, the marital agreement will only be enforceable to the extent necessary to avoid unfair results.

While the agreement must contain each party's John Hancock (signatures), there may problems with the marital agreement. A marital agreement is unenforceable if one or both parties were under duress and did not voluntarily sign the agreement. An assessment of all facts and circumstances are needed to prove or disprove a duress claim. Further, the agreement is unenforceable if there was fraud or a party did not disclose property or financial obligations to the other party before signing. Another concern is the unconscionability of the terms of the agreement. If there is a claim regarding the conscionability of the terms, a court must determine whether or not the terms of the agreement are unconscionable and therefore unenforceable.

Please contact us at Stowell P.C. if you and your partner are considering a marital agreement before getting married or if you are contemplating divorce and would like to protect your assets.

Tags: conscionability; fraud, duress, marital agreement, marriage contract, pre-nuptial, unconscionability

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Mediation 101: The basics

By Chris Bui

07
November
2011

Based on the provisions of § 13-22-305, C.R.S., courts today often require parties to attempt resolving their issues in mediation prior to a judge bringing the parties into their courtroom. To many individuals, mediation is a foreign concept. What takes place during mediation?

A typical mediation involves:

(1) Introductions: A mediator establishes general and procedural guidelines and ground rules for the mediation. This is also a time for the attorneys confer, if need be, on any issues they are willing to resolve before beginning mediation. Depending on the mediator, this is when the parties separate into private rooms.

(2) Statement of the issues or party demands: This is when the parties get to tell their side of the story as well as bringing forth their reasons why there needs to be mediation.

(3) Gathering information: The mediator will begin asking the parties open-ended questions to get a better feel of the situation.

(4) Identification of the problems: While the parties may have already stated their issues, the mediator may be able to articulate the issues better after the information gathering period. The mediator may even be able to find a common factor underlying the issue and use that as a negotiating starting point.

(5) The negotiations - bargaining and generating options: This is where the mediator's experience attempts to get the parties to find middle ground based on all of the information provided. It is often a back-and-forth process for the parties and their demands.

(6) Conclusion - agreement or not: If the mediation is successful and the parties reach an agreement, everything is reduced to writing and signed. If there is no agreement, the parties can agree to additional mediation or termination of the proceeding.

If you or someone would like to initiate mediation or is about to go into mediation and would like legal advice, please contact Stowell P.C. Our attorneys can help and would love to hear from you.

Tags: mediation, mediator, negotiation

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Obesity = Abuse?

By Chris Bui

06
November
2011

While obesity can be used as a tactical jab against the other parent during a custody dispute, it may actually hide a bigger issue. Child abuse. A controversial take on parents and their obese children involves removal of the child and placement into protective foster case. Some experts argue that childhood obesity should not be argued on the custody level but rather a child abuse and neglect point of view. Recent commentary by Lindsey Murtagh of the Harvard School of Public Health and David S. Ludwig of the Children's Hospital in Boston discuss making obesity a crime and for state intervention if a child is suffering from severe obesity. As expected, their comments drew much ire and criticism.

The obesity of a child should not be argued solely on an abuse and neglect point of view. While a parent's continued and habitual nature of allowing their child to eat unhealthy foods may lead to an obese child, so too do genetics and environmental factors. The same goes with poor financial standing by the family. There are too many extraneous factors that contribute to a child's obesity. Some of them may be the parent's fault, while with others it may not be.

Does making childhood obesity a crime ultimately burden the courts? How will a court determine the best interests of the child if the cause is genetic or financial reasons? How important is the obesity argument, for the parent and/or child, in comparison to the other factors associated with alleged abuse?

Please comment below with your take on whether or not childhood obesity should be criminalized and for a state to get involved. If you are concerned about your child's obesity and would like legal advice, please contact us at Stowell P.C. We would love to help you and hear your thoughts on this issue.

Tags: child abuse, child obesity

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Custody Disputes: Obesity is the new second-hand smoke

By Chris Bui

05
November
2011

Parents going through custody disputes have a new instrument against their former, or soon-to-be former, spouses. Obesity. Before it was smoking and drug-use, now obesity is making its way into the child-custody battle arena. The Wall-Street Journal recently noted that family-law experts and practitioner's are seeing an increase in accusations that the other parent as the cause of their child's obesity. Allegations typically claim of poor nutrition practices by a parent causing obesity to the child if the child is not already obese.

Similarly, while there is growing concern for a child's physical fitness, there is also a growing concern for the parents and their physical fitness. A parent's physical fitness and diet can also be used against them in a custody dispute. Parents claim that the other parent is either too obese to provide proper and attentive care to the child or that the obese parent sets a poor example to the child through their own bad eating habits.

Why this newfound focus on obesity? Jezebel, notes it is due to recent changes in the approach to parental custody. Today, both mothers and fathers are requesting some sort of shared arrangement whereas in the past, the courts often awarded mothers sole custody of the child. The issue of obesity is just another creative argument for one parent to use against the other. It becomes yet another item on a checklist for judges to consider when determining the best interest of the child.

Should the courts make the link between parental or child obesity and child care? Is there a viable link between obesity and the best interest of the child? Ultimately, the court's ruling will be premised on all relevant surrounding factors, but how much obesity evidence should it consider when determining custody rights?

Please comment below, our attorneys would love to hear from you.

Tags: best interest of the child, child custody, obese, obesity

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