By Brenda L. Storey, Esq.
A huge part of a parenting plan is division of the holidays. In addition to their general significance, certain holidays can have a very personal, sentimental importance to a parent. As such, much thought should be given to how the holidays are addressed at the time of divorce.
A good starting point is looking at the intact family’s traditions. Was Christmas Eve always celebrated with one spouse’s extended family? Is one parent Christian and one Jewish? Was Thanksgiving out of town, and over four days in order to see long distance family? Was the Fourth of July a huge celebration, with taking days off of work and camping? Was Memorial Day really even acknowledged, or just a day off of work and school?
There is no specific way to handle holidays. It is more an ala carte. Each and every holiday can be identified and simply alternated every year. Some holidays can be excluded, and simply fall as they do under the regular parenting schedule. One parent can always get a specific holiday every year, while the other parent gets something else. Non-typical holidays, like Boxing Day, can be included.
Additional key considerations are specific definitions as well as impact on the regular schedule. Dates and times for start and end of the holiday should be included in plan. For example, will Father’s Day be the whole weekend, just the day, or one overnight? For any holiday that falls on a weekend day, duration consideration should look at the impact on the regular parenting plan weekend rotation. By defining a holiday as the entire weekend, the children may go three weekends in a row with the same parent, meaning three weekends in a row away for the other parent. If the full weekend holiday definition is still preferred, additional language should be considered, such as adjusting the weekends before or after the holiday weekend, so as to prevent too many weekends away from one. It can be very illuminating to plot on a calendar the regular parenting plan and the proposed holiday sharing. A snap shot of at least two years gives the most accurate picture. Then the focus should be if it is too much back/forth for the children, takes away a disproportionate share of regular parenting time, or evens out just by letting the holidays fall with the regular parenting schedule.
Holidays are to be a special time. Although it is difficult to be away from children for any period of a holiday, a personalized schedule that is based upon the specifics of your family helps to continue the traditions previously enjoyed. With very detailed definitions, the focus can be enjoying the holiday and celebrating one another.
By Brenda L. Storey, Esq.
As parties settle their action, or the court issues its ruling, “little” details should not be ignored. This is, in my opinion, the greatest weakness in using state forms to capture the terms of resolution. General terms are good, but the specifics to address enforcement is better.
As one example, the parties agree that a spouse will receive the marital home as part of the property division. If the mortgage is in joint names, specific terms need to be included as to whether refinance will be required, with a deadline, and what happens if the refinance is not accomplished by then. One avenue is to have the house listed for sale, but all the terms of the future potential sale need to be addressed at the time of the initial action. As such, selection of the realtor and listing price should be included. Specifics as to when to drop the listing price and whether to accept an offer less than listing price, similarly, should be defined. Absent these details, the parties could be in litigation again in the future just to enforce what was previously thought to be resolved.
Security for maintenance and child support is also one that requires specifics. If God forbid the payor/former spouse dies before child support and/or maintenance responsibility has terminated, the payee needs to be protected. Therefore, as the judge issues its support orders, life insurance should also be sought. The terms need to include specific amount, beneficiary designation, proof and timing of proof, and whether the security amount can be reduced at specific intervals.
The more specifics the parenting plan has, the less likely there will be room for disagreement. For example, the specific days, times, and locations for all exchanges should be included. The potential decisions covered by shared decision-making should be defined, such as whether tattoos and body piercings are within that category. Phone calls from the children to the parent who does not have parenting time, and ones initiated by that parent to the children, should be addressed, to insure whether that contact can occur. If the parties reach an impasse as to a decision, the means to resolve that impasse should be specified.
Orders, or agreements, are only binding upon the parties, and not third parties. As such, terms need to be included to best address situations in which third parties are involved. For example, credit card companies are not bound by orders between parties for responsibility. So, indemnification and hold harmless language is good to include. Schools are not subject to court orders between parents; therefore, access to records, participation terms, and limitations on contact need to be addressed with the onus on the parents.
These kinds of details are but one reason to have solid representation in a divorce. Even judges, tasked with making final rulings and approving submitted agreements, do not alone catch all the details that are needed to best move the parties forward post-action. The missed details are often what causes disagreement, and future litigation.
We are pleased to announce that Attorney David A. Volk is joining The Law Firm of Brenda L. Storey, P.C. David is a Colorado native who attended college at Franciscan University, and earned his law degree from the University of Wyoming College of Law. In addition to handling domestic relations cases, David will be helping to expand the firm’s practice areas. While completing an externship in L.A. County Juvenile Court, David came to realize he had a passion for helping children and families that had unfortunately become involved with the Department of Human Services. During such difficult times, quality representation is essential. Seeing the need, and building on David’s passion, the firm is now offering representation in Dependency and Neglect cases. Such matters involve allegations of physical, emotional, or sexual abuse of a child, and if a finding is made, the parents are held responsible for making positive changes in their families for the benefit of the children’s best interests and safety. The focus in these cases is the children, and David is humbled to be able to advocate for the parent’s rights at every stage of the proceedings and help the parent to obtain access to necessary resources. We welcome David to the firm, and look forward to his positive contributions to Colorado families in need.
By Brenda L. Storey, Esq.
To finish out our series of what the court does not or cannot do, I address herein the fact that the court does not track compliance.
When a court issues an order, it assumes compliance and is done with the underlying issue. The Court has no idea whether a party complies, or not. As a result, the Court has no knowledge needed to enforce its own orders.
The duty, therefore, is on the party to notify the court of non-compliance. The ways to do this include via a Motion to Enforce, a Verified Entry of Support Judgment, a Motion for the Clerk to Act, or a Motion to Enforce Parenting Time.
I often tell clients that post-divorce compliance is like raising a 2-year-old. If you say no, but waffle, they take advantage. Similarly, 100% compliance by a former spouse is expected. If a violation occurs, the issue needs to be raised immediately. If the noncompliance is not then rectified, enforcement through the court is needed. Otherwise, if you give an inch, they take a mile. Usually, one enforcement motion right away brings about compliance with the current term at issue, as well as no future noncompliance. Thus, act swiftly – and expect nothing less than full execution of the terms reached as stated in the Agreement or Orders.
By Brenda L. Storey, Esq.
In addition to it being a catchy line from a 90’s song, which I now cannot get out of my head, when looking at certain future financial circumstances of the parties, the divorce court “can’t touch this.” Specifically, if a spouse is expecting a future inheritance under a will or a revocable trust, the court cannot “divide” that future speculative benefit during the divorce. Further, that anticipated but not guaranteed future windfall cannot be considered by the court when addressing maintenance and child support at the time of the divorce. The reality is that the court just does not see these as property or a money source, as they can be divested anytime by revocation or amendment.
Similarly, a court cannot order divorcing parents to pay for their children’s college education. College is, obviously, a goal many parents have for their children. The cost continues to sky rocket. However, the court loses jurisdiction over the financial support of children once they reach the age of 19, or other emancipation as defined by law. Although this can seem unfair to a parent going through a divorce, it actually makes sense when seen in full context. Children whose parents do not divorce cannot get a court order that requires their parents to pay for college education, so children of a divorce are treated similarly.
The Court also has no authority to bind third parties by way of its divorce orders. For example, a court can order one party to be responsible to pay off a joint credit card, but that order has no impact on the credit card company. If payment is not made, the credit card company can go after either party or both for collections. A court cannot order one party to maintain the other on his/her health insurance post-divorce, as the eligibility for coverage is determined by the insurance company. A court also cannot enter an order against a non-party, such as order that a named caregiver must or must not do something.
There are many other examples of what the divorce court cannot touch. A thorough discussion with a lawyer is crucial to understanding the limits, and setting realistic expectations. An exceptional lawyer can even sing that 90’s song for you while answering the questions.
By Jamie Leaver Sawyer, Esq.
While Ms. Storey vacations with her family, I have been relegated to blog substitute. Continuing with the series of what the court cannot do, this week the focus is on the fact that the court cannot divide between the couple the separate property of a spouse.
In a dissolution of marriage or legal separation case, there are two types of property – marital and separate. Marital property includes property acquired by either spouse during the marriage. Separate property may include an asset acquired prior to the marriage or acquired in exchange for property acquired to the marriage, property acquired by gift, bequest, devise or descent or in exchange for property acquired by gift, bequest, devise, or descent, and property that is excluded by a valid agreement of the parties.
Separate property is excluded from the marital estate and, as such, cannot be divided by the Court. While the Court cannot divide the separate property of an individual, you are still required to disclose the existence of any separate property. Further, the increase in the value of separate property is considered marital property subject to division unless such increase is excluded by valid agreement of the parties, and there are circumstances in which separate property may become marital property.
Given the restrictions on the Court in dividing separate property, one of the first steps in property division is determining that which is marital and that which is separate. It is important to meet and discuss with an attorney the distinctions and to further understand that which is subject to division.
By Brenda L. Storey, Esq.
I am excited to introduce our new blog series about what divorce does not cover, or address, or fix, or do. For the first installment, I am focusing on what the court cannot do. So many times, potential new clients meet with me with great expectations about the power of a divorce court. Oh how I wish that the Domestic Relations court could fix everything. Unfortunately, our courts do have limits. For example, they cannot make more money appear than exists, or change the circumstances of the parties from how they were found, or enter a magic order that addresses parenting shortcomings. Instead, the courts must enter orders based upon the facts as they exist and apply the current law thereto.
For example, when the market crashed, parties to a divorce had more debts than assets, and more expenses than income. Their homes were being lost to foreclosure, the breadwinner likely had lost his or her job, and credit cards were maxed. Oftentimes, bankruptcies were filed, so the divorces were stayed, held in limbo. Then, once the divorce case could resume, there were even less assets, as what could be used to pay off creditors was so used. There was not enough money to pay the living expenses of one household, let alone two. In such cases, the court divided between the parties what few assets remained, divided up between them the debt that remained and responsibility therefore, and left each party to find his/her way to live. The court is not a financial planner, nor a wizard. The Court has no magic wand to make more money appear.
Similarly, some people reach their divorce breaking point when their spouse has failed to contribute to family support or participation for years. They complain what a lazy person the spouse is, and how they have had to support him or her for years. Though understandable, it does take two for this to continue to happen. This same person, who allowed this to continue for years, wants it to almost instantly change upon filing for divorce, and are shocked that what transpired over years of their marriage could be grounds for a maintenance award to the other spouse. But, the court takes the parties as it finds them. It is true, the court can expect a party to become employed, and if they opt not to, impute income to that party, but such an order is not immediate upon filing and depends on the circumstances of the parties, such as age, health, standard of living enjoyed during the marriage, how long they were supported by the other spouse completely, and so on. The court is not the backbone of the relationship, nor a wizard. The Court has no magic wand to make people better than they are – either one of them.
There are all kinds of parenting styles. Unless a person files for divorce, or DHS gets involved, or you are “blessed” with a busy-body mother-in-law, your parenting is usually not questioned. However, once divorce is filed, everyone is a critic, and the past is all relevant. If during the intact marriage one parent spent little time with the children, that will be a hard factor to overcome in the divorce process if instantly seeking substantial time. If, during the intact marriage one parent cussed in front of the children, at the time of the divorce the other parent can raise it as a concern, but the question is why it was not nipped long before if really a concern. Some parents are simply not good parents, and no order will change that. Instead, the goal is to get orders that limit the parenting time with that parent to the extent needed to limit the attendant risk to the children. The court is not the third parent of the children, nor a wizard. The Court has no magic wand to make people the perfect parent.
Plain and simple, the court takes the parties as it finds them, and all their baggage to that point, and applies the law to enter orders. The key is to find a quality lawyer who takes the time to learn all the relevant facts, dig deeper, focus on the most persuasive facts, sets realistic expectations, empowers the client’s voice, and becomes a form of a magic wand when making the argument to the court as to what relief the client seeks.
By Brenda L. Storey, Esq.
As I bring to a close the latest blog series that has focused on parenting, I wanted to highlight the importance of cherishing the memories. Parenting is not easy, but it has so many special moments that will only happen once. Of course there are the huge milestones, such as the first step, the first word, starting kindergarten, getting a driver’s license, graduation. Hang onto those. The special moments also include the hard times– when having to discipline your child, or telling your child of the divorce, or when a family pet has died. How you handle those times can, in fact, bring you closer to your child than anything else.
The key is to not be so caught up in one’s own self, or material needs, or career, or stress, or anything else to let those moments slip away. Fully engage in them. Open yourself up to them.
The older I get, and as wonderful a life as I have, what I treasure are the memories I have with my kids. The good, the bad, and the ugly all had love as part of each and every one. Those memories can last forever, and there is always room for more.
By Brenda L. Storey, Esq.
Children whose parents are going through a divorce already have a lot with which they must deal. They are facing the loss of their family as they know it. Fear of the unknown is overwhelming. Change is guaranteed; the only question is how much will there be. The last thing these children need is one more worry or concern. The best that a parent can do is protect each child from as much as possible, including shielding them from adult issues that are part of the divorce process.
Involving the child in the details of the divorce, telling them about what the other parent is saying, or leaning on the child for support is wrong, wrong, wrong.
Adult issues are just that — adult issues. There is no place for children at the adult issue table. Children do not need to be aware of a parent’s concerns about money, parenting disputes, or legal proceedings. That is for the adults to handle. Children are not responsible for emotionally supporting their parent. Instead, the parent is to provide a sense of safety and security for the child. The child never needs to hear what one parent is alleging about the other, but instead needs to be kept out of the fray. Failing to abide by these parent/child boundaries can harm the child more than any other component of their parent’s divorce.
One parent might break these rules. If this happens, kids are pretty quick to share in order to work through the negative feelings this conjured up within him or her. Sometimes, the child will come right out and report what the parent said. Other times, the child’s behavior will speak volumes that something is off. Another version of response is that the child hurls the allegations inappropriately shared by the parent. The best the other parent can do is listen, empathize with the feelings the child is experiencing, and then reassure the child that he is loved too much to be put in the middle any further.
Some children will ask for more information. Some will argue that they are in the middle already, because it is their future that is being discussed. Some will ask questions based upon what the other parent has overshared. The receiving parent need only remember the magic words: “I love you too much to put you in the middle.” Then, that parent needs to act on that and continue loving the children too much.
By Brenda L. Storey, Esq.
As parents, we wear many hats. Cook, coach, therapist, nurse, nutritionist, and on and on. One of the most important is role model. That responsibility should not be taken lightly, as it can have a life-long impact on a child.
The role can be either positive or negative. Does the parent bully? Lie? Have patience? Speak kindly? Cuss openly? Smoke pot? Show respect? Choose moderation?
During divorce, sometimes the parent lets down on the role. They become a bit more self-absorbed or self-indulgent. Unfortunately, this is the worst time to let a child see such a shift. They learn by watching, and see that when times get tough you turn to bad choices. Additionally, the children have the greatest of emotional needs at this time, and the parent is absent, either physically or emotionally. What message does that send the child? How will that influence their future parenting?
A great exercise is to write down what you hope your child will be— not career-wise but personality and emotionally. Then, emulate that for your child. Work hard to be what you hope they will be. Let them see the positive role model. In the process, you will likely find your self happier and more satisfied. Walking the walk is a win-win.