July 17, 2020

Contested Divorce and Custody Issues

Child Custody LawyerIn many contested divorces the contest involves issues of custody of children. Frequently these battles involve two parents who are both capable and competent care givers.  Typically both parents love their children.  Unfortunately, parents who are getting divorced have to learn how to share their children.  In most cases, if the parents were good at sharing and cooperating together they probably would not be getting divorced.

Each person has their own reason for fighting for custody.  For some people it is ego.  For some, it is a desire to hurt their spouse.  For others it is money.  Some people have a genuine belief that the children are better with them than with the spouse.

Some people fight over custody because child support is tied to the issue of custody.  If a parent doesn’t want to pay child support then he or she needs to obtain primary custody of the child.  If primary custody is not available then shared custody with each parent having parenting time for one half of the time available is a goal.  Even 50 / 50 custody can result in lower child support payments.  Of course, the parent with the lower income may fight for custody only to get child support payments or higher child support payments. 

Courts approach custody from the point of view of what is best for the child.  The name for this concept is “the best interests of the child standard.”  This simple statement gives a judge broad discretion in making a custody judgment.  This standard can be difficult to translate into presenting evidence so attorney Alan J. Pransky would tell you to consider the following:

1.)  What was the custody arrangement when the couple was together?  Custody trials tend to have a lot of contradictory evidence.  Each spouse tends to exaggerate the other spouses flaws and minimize their own.   Start with the question of who was the primary custodial parent when the couple were together.  Most couples have an allocation of responsibilities within the marriage.  One spouse tends to be the primary wage earner and the other tends to be the primary housekeeper and child custodian.  When the wage earner testifies how dangerous the other spouse is and how that spouse poses a threat to the child, ask “How did you go to work each day leaving the children in the care of this person you claim is a threat?”  When day after day a parent is left alone with the children it is hard to believe that they are a danger to the children.

2) Which parent has the strongest bonds with the child?  While children may love both of their parents, they usually choose one parent over another for comfort and security.  When a child is injured, which parent do they seek for comfort and protection?  As children get older, which parent do they feel more comfortable talking to?  Children may indicate that they can’t imagine living separate from one parent but can easily imagine living separate from the other.

3) Each parent’s plan for taking care of the children.  In order to argue for custody, a parent must provide care for a child 24 hours a day, every day that the child is with the parent.  This means that the parent must have an appropriate physical setting.  Do both parents have separate bedrooms or is a parent proposing to share a bed with the child?  Where will the child be going to school?  How will the child get to school?  If a parent proposes 50 / 50 custody but lives an hour away from the other parent then the child will be subjected to unreasonable commuting to get to and from school.  How will the parent provide care to the child when working?  How will a parent care for a sick child that can’t go to school?  Will the child live in the same home as prior to the divorce and be able to continue to play with the same friends?  Judges may call this evidence “stability and continuity in the child’s life” but once can tend to think of it as having a better parenting plan.

4) For many judges, the ultimate measure of the best interests of the child is the success the child achieves in school.  This means that each parenting plan should be considered in terms of how it encourages success in school.  A judge should consider how each parent deals with the child’s homework and school preparation.   Are the parents consistent on bedtimes on school nights?  How have the parents interacted with teachers in the past?

5)  A court will also consider living arrangements and lifestyles of each parent andhow such circumstances may affect the child.  The mere fact that a parent intends to live with a new romantic partner should not determine child custody.  While some states consider such a living arrangement to be morally harmful to the child, most states don’t consider such moral evidence.  Instead, courts should consider how the new love interest treats the children.  Any live in partners will have to be involved in care giving for the children.  A Court should view cohabitation from the viewpoint of benefits and disadvantages to the way the children are treated.

6) Increasingly courts are considering the manner in which each parent interacts with the children about the other parent.  Parents should protect the child’s relationship with both parents.  No derogatory comments about the other parent.  No excessive questioning the child about activities with the other parent.   No blaming the spouse for the termination of the marriage.  Potential or actual parental alienation should be considered by a judge in a custody decision.   Most experts advocate that children need quality time with both parents.  There is a current trend to give both parents significant time with the child. 

Contested child custody cases can be very difficult.  If you can’t agree with your spouse about custody of your children you should consult a child custody lawyer for advice and assistance.

 

June 1, 2020

Divorce During COVID-19: What to Know

divorce lawyerThe COVID-19 Pandemic is clearly unprecedented in the course of human history, impacting daily life like no event ever before. If you are divorced or contemplating a divorce, here are some important things to know about how COVID-19 will affect your life:

  1. Courts Are Open – While many non-essential businesses are closed, courts technically remain open. Even a pandemic does not prevent the public’s right to access the justice system. It is supremely important to parties of divorce and custody cases for courts to continue to function because of the ever-evolving nature of family law disputes. Many divorce courts are using tele-video conference (e.g., Zoom, Google Meet, or Microsoft Teams) to conduct status conferences, hearings on contested motions, and even trials. There is no reason to wait until the pandemic is over or for the country to “reopen”; the courts are functioning.
  2. Child Support Modification – Most child support laws allow a modification if there is a substantial change in circumstances, which can include the significant increase or decrease in income by one of the parents. The Coronavirus Pandemic has caused an economic calamity, with unemployment at historic levels. Once the Paycheck Protection Program runs out, and people stop receiving full unemployment benefits, income levels will drop. If you lost your job, or your business has experienced a downturn, this would be a substantial change in circumstances that you can use as a basis for modifying your child support obligation. You have to act fast, however, as a child support obligation is extremely difficult if not impossible to get out of without paying, and you can be subject to interest and penalties.
  3. Spousal Support Abatement – Much like child support, spousal support (known as “alimony” or “maintenance”) can also be modifiable depending on the circumstances. The economic downturn of the COVD-19 pandemic is cause to seek a modification of support, or even an abatement. An “abatement” is a legal term meaning to stay or pause the support obligation. If you are paying spousal support, you may be able to abate your payments until you recover economically.
  4. Parenting Time – The pandemic is not a reason to interfere with the other parent’s visitation time with their child. Despite being a health disaster, many family law Courts have issued orders and guidelines stating that parenting time and visitation must continue as agreed or ordered in the era of social distancing. Many parents are expressing serious concern that the other parent is not adhering to social distancing guidelines. While a judge might ultimately agree that a parent is not doing enough to protect themselves, it should be brought to the court’s attention instead of simply refusing to exchange the children. 

Thanks to our friends from Hecht Schondorf LLC for their insight into family law during the pandemic.

August 26, 2019

Subaru Crosstreks sees most crashes despite high safety rating

Auto accidents in Colorado and across the U.S. affect 25.81% of all the Subaru Crosstreks on the road today. The Crosstrek is involved in more at-fault crashes than any other newer vehicle according to Insurify. The auto insurance comparison site has even compiled a list of 10 cars that are involved in the most crashes; altogether, car crashes affect 13.64% of these vehicles.It may seem strange that the Crosstrek would be at the top of the list when the Insurance Institute of Highway Safety gave the 2019 Crosstrek the highest possible safety rating. This rating covers both crashworthiness and crash avoidance. It is true that many crashes lead only to minor injuries for the drivers of and passengers in Subaru Crosstreks. Crosstreks are also affordable and have great fuel economy, adding to their value.The other vehicles on the list are as follows: the Honda HR-V, Hyundai Elantra GT, Infiniti Q50, Subaru WRX, Mazda3, Acura ILX, Lexus CT, Chevrolet Trax and Hyundai Santa Fe Sport. Subaru’s second vehicle on the list, the WRX, is known as the car that gets pulled over the most for speeding offenses. The Chevrolet Trax is the only American car on the list. Of the imports, seven hail from Japan, and two are from Korea.Whatever a car’s make or model, it is, to a large extent, safe only insofar as the driver is safe. If negligent driving is to blame for a car crash, those who were injured without playing a part in the crash may consider a case under personal injury law. In Colorado, one can recover damages even when partially at fault although the final amount will be lessened in proportion to that degree of fault. Victims may want legal assistance.

August 14, 2019

Study of divorce reasons offers insights about marriage

When people in Colorado begin considering divorce, it might be because they feel their marriage is emotionally unfulfilling. A study that was published in the Journal of Sex & Marital Therapy reported that the reasons people give for divorce tend to be emotional and psychological and not reasons related to behavior.The study surveyed 2,371 people who had recently divorced and who were 45 years old on average. It found that 47% said they got a divorce because they no longer loved their partner or vice versa, and 44% said communication issues were one of the main reasons that led to the end of their marriage. Problems with communication has long been understand as a major reason for divorce. The third most commonly cited reason for divorce was a betrayal of trust or a lack of respect for one another. In fourth place, people said they had grown apart from their spouse. Researchers said that the responses suggested a change in how marriage is viewed. Increasingly, it is considered something that fundamentally should provide both spouses with emotional support.Among respondents, 44% said they had put the divorce in motion while 40% said their spouse had. Only 16% said the decision to divorce was mutual.Whether or not initiating the divorce is mutual, people have a choice to either negotiate a settlement out of court or go to litigation. The former can be cheaper and less stressful, and it also puts the couple in control of the outcome. However, the latter is sometimes necessary because one person is uncooperative or there are other issues. For example, if the relationship is abusive or one parent is concerned about the child’s safety with the other parent, it may be necessary to go to court. An attorney may be able to help with either process.

July 31, 2019

Smart social media use during divorce

For some ex-spouses in Colorado, posting on social media about a divorce might seem like a good way to vent. However, this can also backfire. Anything people post online might be used against them during a divorce. It is better to keep conversations about a divorce offline and avoid mentioning a marriage breakup on Twitter, Facebook and other social media platforms.Couples who are divorcing amicably could make an agreement about announcing the split online. Spouses should keep in mind that using social media irresponsibly can change an amicable divorce into a contentious battle. If there are kids involved, parents should be aware of each other’s preferences regarding posting about the children online. They may want to include a provision in the divorce agreement that outlines whether photos and other information about their children will be shared on social media.In general, people should be mindful of their privacy online during a divorce and not post negative updates about an ex-spouse. Some people do remain friends on social media after a divorce, and others may continue to inhabit the same social and professional circles. Information shared online could still be used against one parent by the other to make a change in child support or custody arrangements.Parents who cannot reach an agreement regarding custody and support may need to go to family law court, but they should be aware that a judge might look negatively on a parent who does not appear to be cooperating. Genuinely important information indicating that a child is unsafe or that a parent is lying about income may be shared in a custody dispute. Legal counsel could help a parent gather and present evidence.

July 17, 2019

Is a drug recognition expert involved in your DUI case?

In Colorado, an officer may pull a driver over for a traffic infraction such as speeding and then gain probable cause to test the person for impairment. While this is true of any officer in any state, there are officers in Colorado trained specifically to be drug recognition experts. They attend an extensive and in-depth program with international standards developed by the International Association of Chiefs of Police and supported by the National Highway Traffic Safety Administration.Here are the methods a DRE may use to identify a drugged driver.Conducting a blood alcohol concentration test on the driverColorado has an expressed consent law. Every driver on the road has legally provided consent to undergo a chemical test such as a breath, blood, urine or saliva test simply by being on the road. A DRE will conduct this type of test.

Interviewing the officer who arrested the driver and the driver

The DRE may become involved after an arrest, in which case he or she will gather all the facts of the arrest from the officer involved. The DRE will also talk to or further interrogate the driver.

Examining the driver’s physical condition

There are several physical signs that indicate impairment that should be obvious to someone with the DRE training. The DRE will examine the driver’s eyes, vital signs (blood pressure, pulse and body temperature), pupil size, muscle tone and nasal and oral cavities. The DRE will also check for signs of drug injection.

Testing for divided attention

Two of the standard field sobriety tests include a mental component designed to reveal impairment: the one-leg-stand and the walk-and-turn. The driver must complete a simple physical task while remembering and successfully following the instructions the officer provided.

Submitting chemical sample for analysis

If the initial BAC testing was a breath test, then the driver will also undergo a blood or urine test, possibly both. These results will be analyzed for drugs and alcohol.

July 15, 2019

Wedding debt may be linked to unhappy couples

When people in Colorado go into debt to finance their weddings, it could be a sign of further trouble down the road. Because finances and debt can be such a powerful source of marital strife, it is essential to consider the future effects of the debt when deciding to splurge on a venue, catering or an open bar for a large, elegant wedding. According to one study conducted by loan company LendingTree, 45% of newly married couples between 18 and 53 took on debt in order to finance their wedding ceremonies. Many people expect to be able to host elaborate ceremonies for their weddings even if they are just starting out and struggling financially.The survey found that, of the couples who went into debt for their weddings, almost half had considered divorce since their marriage because of financial stress, particularly wedding-linked debt. On the other hand, only 9% of the couples without wedding debt said the same. The couples who went into debt also seemed to have more differences about how to fund their ceremonies. Three-quarters reported having arguments about the expenses that went into the wedding, while only 20% of the couples without wedding debt said the same.Of course, there are a number of factors that can help to produce these results. The couples with wedding debt may still have enjoyed large weddings, but they may be wealthier and better able to deal with financial stresses. The couples with more debt may also be facing difficult financial circumstances in other aspects of their lives.Marriage and divorce are financial and practical transactions as well as reflections of a romantic relationship. A family law attorney might be able to provide advice and guidance on how assets and debt can affect the end of a marriage, including property division and spousal support.
July 5, 2019

Safety technology belongs in every vehicle

In Colorado and across the United States, 90 percent of serious car crashes are caused by drivers who make wrong decisions at critical moments. Automatic emergency braking systems and forward collision warnings help prevent mistakes from taking place. However, only 56 percent of the vehicles manufactured in 2019 include these safety features. Jeff Plungis of Consumer Reports believes that every new automobile needs to have a forward collision warning and an automatic emergency braking system. He mentions that technology is not always implemented in a timely manner. For instance, he states that it took more than a decade before it was mandatory for car manufacturers to include seat belts in all vehicles.Thanks to the invention of the now common seat belt, more than 300,000 people have survived car crashes since 1960. Today, seat belt technology has improved by the implementation of two parts called the “limiter” and the “pretensioner.” A limiter provides enough slack to protect the seat belt wearer from injuries. A pretensioner ensures that the seat belt becomes tighter in the event of a crash.In addition, some vehicles include inflatable seat belts offering even more protection from potentially serious injuries. Plungis states that many automobiles do not include built-in safety features. Plus, he mentions that safety features often focus on front seats rather than rear seats. He states that life-saving technology is not only for wealthy people who can afford to buy expensive luxury cars.A car accident can occur even if the vehicle includes every conceivable safety feature. Survivors of car crashes need to understand that insurance companies do not necessarily provide adequate compensation for injuries and injury-related matters. When a victim incurs paralysis or a traumatic brain injury caused by a car crash, speaking to a personal injury attorney may lead to monetary compensation.
June 21, 2019

Proving causation: an obstacle in many malpractice cases

Medical malpractice cases are some of the most difficult personal injury cases to pursue in Colorado and elsewhere around the country. Two things must be proven for such a case to be valid, the first being the fact that the doctor, nurse or other medical professional failed to provide an established standard of care. While this can be easily done, the second step, that of linking the negligence to the injury, can be challenging.For example, those who are about to undergo a surgical procedure are told beforehand that there can be side effects and complications. If they develop complications after surgery, then they will need to show that a surgical error or another mistake was to blame. Otherwise, they cannot be compensated for injuries that can arise even when there is no negligence.Orthopedic injuries like fractures come with a similar risk. Not all of them heal properly even when the doctors follow an accepted standard of care. Only in cases where a doctor was clearly negligent, such as in failing to align the bone or consider surgery when the injury would have called for it, can victims be successful.Delayed cancer diagnoses pose a problem, too, for those who wish to file a claim. Cancer has a high mortality rate and requires extensive treatment.

Those who believe they have a strong case may wish to have it evaluated by a lawyer. Most attorneys who specialize in personal injury have a network of professionals who can help build up cases. Investigators may obtain proof of negligence, and medical experts may measure the extent of injuries and their related costs. Expert witnesses may come in to offer testimony. A lawyer may start by striving for a settlement out of court, litigating only when negotiations fail.

June 3, 2019

Business owners may have special concerns during divorce

Business owners in Colorado who decide to divorce may have specific concerns that arise about their situation. After all, some of the longest-lasting effects of divorce are financial, and these issues may linger long after the emotional and practical issues have faded away. In particular, business owners may want to think about the tax implications as well as the impact on their companies of any decisions they make about property division in a divorce. However, business owners can work with professionals and take steps to allow their companies to emerge successfully after a divorce.With many family-owned businesses, these enterprises may be the major source of income as well as a significant marital asset. This means that the business may be the primary subject of negotiations over how to handle property division in the divorce. This is especially true for the type of small companies where personal and corporate lines are often heavily blurred in terms of finances. As a result, it may be difficult to agree on a valuation for the business or an accurate assessment of the business owner’s income.Since Colorado is an equitable distribution state, it is not assumed that each spouse will necessarily receive 50% of the business during a divorce. However, when the business is a major contributor to household income, and both spouses are part of its success, it should be considered likely that some division will be a part of the divorce settlement. In some cases, other marital property, such as investment funds or retirement plans, can be used to “buy out” the other spouse.The complications that accompany the financial side of divorce can be exacerbated when a family business is involved. A family law attorney can work with a divorcing spouse to advocate for a fair settlement on property division and spousal support.