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Professional Recognitions

10.0Brenda Storey

There is a Political Slant in Divorce Cases

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.

But I read On-Line…

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.

 

 

Is It Worth It?

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).

One Little Word…

By Brenda L. Storey, Esq.

No.

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.

 

 

How Do You Holiday?

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.

Why I Run

By Jamie Leaver Sawyer, Esq.

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.

Our Firm supports Jamie and this incredible endeavor. Join us, won’t you, in donating to help find a cure? Payment can easily be made at: www.heroes.stjude.org/jamieleaversawyer.

Let Them Be Mad at Me

By Brenda L. Storey, Esq.

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?

The anger is diverted.  The client is not the brunt of the emotions.  This allows the client to have even more emotional space to heal and grow, and less baggage during the process.    This allows the parties to move forward, as best as they can, to parent  post-litigation.    The lawyer, in the rear view mirror, continues to be blamed for the shift in the former spouse.  Let them be angry at me.  I don’t have to raise children with them, but I assist  the client in doing exactly that by carrying the  anger directed at me.

 

When Can My Child Decide the Parenting Schedule?

By Brenda L. Storey, Esq.

A common question is at what age can a child determine when he/she will see the other parent.  The simple answer is when the child reaches the age of 18.   Until then, such a decision is not for a child, just as other adult decisions are not for children:  Whether to go to school, whether to do homework, when curfew will be, and so on.   Adults make these decisions, focusing on what is best for that particular child.

Now, the more complicated answer…Our statute requires the court to look at all relevant factors, as well as many specific factors.  One of those specific factors, tucked within the others, is the child’s wishes as relates to parenting time, if the child is of adequate maturity to form an appropriate opinion.   This does not correlate with age.  A 16 year-old with raging hormones may decide he wants to live with his father, who is not home often, does not have schedules or rules for the son, drives fast cars, and often hosts parties with alcohol and attractive women, rather than with his mother.  That is not really a mature decision by the child, and the other factors will carry much more weight in deciding what parenting time schedule is best for him.   In contrast, a 5 year-old could express that she does not like it when she wakes up in the middle of the night and cannot find her mom, or when she does find her, her mom is in the bathroom and hard to wake and smells funny, and as a result, she likes staying with her dad where she feel safe.   Those are mature concerns and wishes, and to be considered heavily with the other statutory factors.

These examples are rather obvious.  The more complex situations are when a child is saying they do not want to go to the other parent’s home, but it is not so clear why.   The why is what needs to be explored.   The why is what the court explores.   Is it because the other parent is emotionally or physically abusive?   Is it because a parent is telling the child they do not have to go?   Is it somewhere in between?    Oftentimes, an expert is needed to assess the full situation, report back to the court as to findings, and make recommendations.   These expert reports can also help the parents to reach common ground.    The goal, of course, is to do what is best for the child.

Can I Stop My Former Spouse from Relocating with the Children?

By Brenda L. Storey, Esq.

Post-decree, after an initial parenting plan has been implemented, the parent with whom the children reside a majority of the time may seek to relocate with the children.   We have a statute for that.

The applicable law is controlling whether the proposed move of the children is out of state, or in state if it will “substantially change the geographical ties between the child and the other party.”  Such a move first requires the moving parent to provide the other with written notice of his or her intent to relocate with the children.  The notice must be given as soon as practicable, and at a minimum must include notice of the proposed new location, the reason for relocation, and a proposed parenting plan.     If agreement cannot be reached, then permission from the court is required.

When addressing a post-decree request, there is no presumption in favor of the majority time parent.   Instead, both parents share equally the burden of demonstrating to the court how the children’s best interests will be served—staying with the majority time parent in a new location, or staying in the same location with the previously non-majority parent.

The statute requires consideration of the following specific relocation factors:

1.      Reasons for the intended relocation;

2.      Reasons why the opposing party is objecting to the proposed relocation;

3.      The history and quality of each parent’s relationship with the children since previous parenting time order;

4.      The educational opportunities for the children at the existing location and at the proposed new location;

5.      The presence or absence of extended family at the existing location and at the proposed new location;

6.      Any advantages of the child remaining in the primary care of the majority time parent;

7.      The anticipated impact the move will have on each of the children;

8.      Whether a reasonable parenting time schedule can be fashioned if the change requested is permitted; and

9.      Any other relevant factors bearing on the best interest of the children.

As indicated, these cases are very fact specific, and the parent seeking to move with the children must do his/her homework in advance.  If the relocation is permitted, the two-home parenting plan must be crafted in the children’s best interests.  Depending on the age of the children, this can be complicated for varying reasons.  Too young of children cannot be away from the majority time parent too long at a time, and they must be accompanied by an adult if the travel mode is airplane.  Older children can come to resent interference with their life, their friends, and their activities by having to spend school breaks away from their primary world and with the non-majority time parent.  There is no perfect answer for these kinds of scenarios, and the needs of each child, and at different stages, need to be considered.

Can I Stop My Spouse from Moving out of state with our Children?

By Brenda L. Storey, Esq.

With the mobility of today’s society, more and more divorces involve one parent seeking to move with the children out of state.  For the other parent, this often leads to one big question – Can I stop it?   The answer is not a simple one.

A court cannot tell a parent where he or she can live.   So, a spouse cannot get the court to order a parent not to move out of state.   Instead, the court must accept where each parent intends to live, and fashion a parenting plan in the children’s best interests based upon the locations of the two homes.    The focus, then, is which parent should have primary care of the children.  Usually, this answer is the same whether the parents remain in the same area, or live in different states.    The children’s emotional and developmental needs, and limits, do not change just because of distance.   However, the harm to them can be worse under a two-state plan if they do not continue in the primary care of the parent with whom they see as their primary attachment figure and securest bond.   With this in mind, experts and the court often focus on which parenting arrangement would result in the least harm to the children.

The court also cannot indirectly force a parent to live in a certain area.   The court cannot, for example, call a parent’s bluff by ordering the children remain in the primary care of the parent staying in Colorado, in the hopes of getting the other parent to abandon their intent to move.  This is contrary to case law, and trial courts cannot go rogue against controlling legal precedence.

As can be seen, the focus is not keeping a parent from moving, or even keeping the children from moving.    Rather, a schedule must be devised reflecting when the children are with each parent, wherever the parents lives.   These are very emotionally challenging cases, but ones that are becoming more and more common in today’s divorces.

This issue is very different from a relocation case, which is a proposed move with children post-decree, after an initial parenting plan has been implemented.   That kind of case will be explored in a future blog post.