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?
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.
]]>- If the parents' marriage is no longer valid or the parents have been granted legal separation.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.
]]>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.
]]>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.
]]>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.
]]>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.
]]>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.
]]>The stopfamilyabductionsnow.org website provides a list of common signs that a child may be in risk of abduction by a parent or family member. These signs may be: obtaining a passport for the child; selling off of personal and real property; consolidation or withdrawal of bank accounts; obtaining a job in another country; a significant other obtaining a job in another country; the parent has a repeated history of fleeing and attempted abductions; etc. Advocates are also pursuing the idea of creating a second no-fly list for airlines to cover individuals profiled as a high risk of being a child abductor although nothing has materialized yet.
If there is reason to believe your child is about to be or has already been abducted by your former spouse, please visit the U.S. Department of State - International Parental Abduction website. There are forms, phone numbers, and other essential resources to protect your child from abduction. The stopfamilyabductionsnow.org website also provides a list to be proactive and prevent an abduction by your former spouse or family member.
If your former spouse has not yet abducted your child but has expressed the intent to do so in the near future, there are legal steps that you can take to prevent the abduction. Please contact one of the attorneys at Stowell P.C. to get your child the protection he or she deserves.
]]>Unfortunately (or fortunately, depending on who you ask), for the family law community, family law cases rarely come before the Colorado Supreme Court even though family law issues make up about half of the caseload throughout Colorado's trial courts. Although few, the rulings on the select family law cases greatly impact a majority of the population and interactions. The landscape of family law may change during the next two years with Justice Boatright's family law background. He will serve a term of two years and if retained by the voters, he will serve for another ten years.
We wish Justice Boatright the best of luck as he begins his journey. Check back with our blog as we will post family law rulings by the Colorado Supreme Court and commentary as soon as they are available.
]]>Unfortunately, elder abuse is not always evident. The Messenger provides a summary of warning signs to look for when there is a suspicion of elder abuse. If you, friends or family notice a rapid change in behavior, do not assume it is just old age causing the change. Also pay attention to any sudden modifications to the person's will or transfers of property or interests. If the situation does not feel right, it is better to be proactive than reactive.
In other cases, the abuse may not even appear to be abuse at all because the abuse manifests itself in the form of exploitation. Fox Business mentions how constant reliance by children on their aging parents can also be a form of abuse. These are grown, adult children who, for one reason or another, still rely on money from their parents in order to sustain their livelihood rather than attempting to make ends meet on their own. This issue may become more prevalent due to the financial difficulties affecting everyone today.
Paying attention to warning signs and questioning sudden decisions is vital to curbing the issue of elder abuse. Do not hesitate to seek help if you or a loved one suspect elder abuse is taking place. Give the attorneys at Stowell P.C. a call today.
]]>Recently, the Miami Herald covered a mother who charged her former husband with child abuse because he spanked their 14-year old daughter once with his bare hand. The court ruled that one spank does not constitute child abuse because it determined the father's response was a reasonable or non-excessive use of punishment.
But what happens when a court believes the physical punishment is unreasonable or excessive? A father in Ohio was recently charged with misdemeanor domestic violence for disciplining his son with a belt resulting in bruising and welts. It was the boy's stepmother who promptly notified authorities. The father's fate has yet to be determined but his bond was originally set at $100,000. That is more than the average manslaughter and 'making terrorist threats' charge. Fortunately, the court reduced the bond amount to a more reasonable $1,000 a few days later.
What are your thoughts on the issue of physical punishment for children? How would you handle the idea that your spouse/former spouse uses physical punishment as a form of discipline?
More importantly, if you believe that your child or one of their friends may be suffering from unreasonable and/or excessive discipline contact your local authorities immediately.
]]>No patient shall: Engage in the medical use of marijuana in a way that endangers the health or well-being of any person; or engage in the medical use of marijuana in plain view of, or in a place open to, the general public. Law enforcement has informed the Medical Marijuana Registry of the following: Any place outside of the patient's home is considered public. "In plain view" also includes the patient's yard or garage if that patient can be seen using their medicine by neighbors.
We are all well informed of the dangers of indoor secondhand smoke and the argument that everyone is freely entitled to smoke in their home. But what happens when these individuals, legally entitled to smoke marijuana and forced to smoke inside their home, have young children in the home? We have seen states take a proactive approach towards secondhand tobacco smoke. How should the courts and child support services get involved where a young child is being exposed to indoor secondhand marijuana smoke? Aside from the potential physical harm, what about the psychological harm caused to the child after witnessing their parent smoking marijuana?
Is smoking near your child inside the home a form of child abuse? Do you think the government should pursue additional legislation aimed at protecting children? Post a comment below with your thoughts.
If your child facing unwanted exposure to second-hand tobacco, or marijuana, smoke that is outside of their control, there may be legal protections for your child. Call Stowell P.C. today to prevent further harm to your child.
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