On June 28th an Associated Press article came out that addressed the use of Social Networking material in divorce and child custody cases. Leslie and Ken Matthews were featured in the article discussing Social Networking posts as evidence. To read the article as published in USA Today click here.

Given the Social Networking craze that has evolved over the past few years, this is an important topic to address in the divorce and post decree context. Most people do not pay attention to their security settings on Facebook and other networking sites.

If your soon to be ex or your children or mutual friends see something on facebook that they think might be relevant in your divorce or child custody matter, they can get that information to your ex's attorney. Facebook pictures and statements are being used more and more to impeach testimony or as an admission against interest. The article cited above discusses a number of examples and here are a few more:

-- In a child custody case the mother states that the children should not spend overnights with the father because of his drinking habits. The father claims that he has quit drinking for some time. The wife discovers pictures and statements on his Facebook page showing him very obviously drunk and doing shots at a party the prior week.

-- A father claims that he does not have the income to provide the child support requested. Ex wife discovers pictures and statements on Facebook showing him taking the kids on flying lessons. Question: Where is the money coming from for flying lessons if you cannot pay your child support?

-- Wife claims that her husband is threatening her and that she needs a Protection Order. Evidence includes threatening emails as well as threats made on Facebook.

The point to be made here is that Facebook is not private and chances are good that if you are saying one thing in Court and the opposite on Facebook, you are going to find yourself caught in a difficult position.

Can a non-married man who is not the biological father of a child, establish the legal rights of a father? The answer in Colorado is yes, under certain circumstances.

Lets look at the facts from a recent Court of Appeals Case; In Re Parental Responsibilities of A.D., 09CA0756 (Colo. app. 4-1-2010):

Petitioner and Mother had a relationship that ended in 1999. Mother moved away and gave birth to the child in question in August of 2001. Mother and Petitioner reconciled and moved back in together when the child was 11 months old. They lived together as a family until January of 2007 when Mother broke off the relationship and moved in with her current husband. The child, then six years old, spent several overnights per week with the petitioner for approximately one year. In February of 2008, the Mother discontinued the child's contact with petitioner.

The Petitioner brought an action for Allocation of Parental Responsibilities, stating that he was both the presumed natural Father and that he also had standing to bring the case due to his contact and care of the child following the parties break up.

At trial the Petitioner admitted that he was not the biological father of the child. The alleged biological father was notified of the action but lived out of state and chose not to participate.

1. Presumed Natural Father
You may have heard that if you are married when a child is born to your wife, that, as the husband, you are presumed to be the natural Father. However there is also a lesser known provision that applies to a non-married male partner. Section 19-4-105(1)(d)of the Colorado Revised Statutes states " a man will be presumed to be the natural father of a child if he received the child, while a minor, into his home and openly held the child out as his natural child." This presumption may only be rebutted by clear and convincing evidence. The law also states that the presumption is rebutted by a court decree establishing paternity of the child by another man.

In this case the only other potential father was notified but chose not to participate in the action. The Appellate Court held that the Petitioner's admission that he is not the biological father does NOT NECESSARILY rebut the presumption that he is the natural parent when there is no Court Decree that establishes the paternity of another man.

2. Psychological Parent
There was a second legal argument in In Re Allocation of Parental Responsibilities of A.D. that the Court did not address since they found that the Petitioner was the presumed natural father and therefore had the legal rights of a father.

The second argument relates to establishing a relationship as a psychological parent. Colorado Revised Statutes, section 14-10-123(1)(c) states that a person other than a parent may bring an Allocation of Parental Responsibilities action if they have physical care of a child for six months or more, if the action is commenced within six months of the termination of such physical care.

In this case, the Petitioner had physical care of the child several overnights a week for a year following the break up. The Trial Court had found, by clear and convincing evidence, that Petitioner had standing to bring the Allocation action and that he and A.D. shared a preexisting bond of love and affection, that he was A.D.'s psychological parent, and that the child would face possible trauma if she lost all contact with him.

The Appellate Court did not rule on this issue, however, it does form the basis for a strong argument that, even if the Petitioner had not been found to be the presumed natural parent, that under 14-10-123(1)(c) he could establish parental rights. It is important to note that this section only applies because he spent significant independent time with the child after the couple broke up. If the Mother had cut off the relationship immediately when she left, this section would not have applied.

The point remains that the Colorado Courts are going to look at the best interests of the child and if there has been a parental relationship established over a significant period of time, the Court will look for ways to retain that relationship because it is in the best interests of the child. The statutes referenced above were both ways for the Court to give the non-biological but clearly the psychological parent legal rights.

If you would like to know more about how this case relates to your circumstances, feel free to call Matthews and Matthews at 303-329-3802 and ask for Leslie Matthews.

On June first, 2010 the Colorado Supreme Court handed down it's long awaited ruling on In re Marriage of Thornhill,Case No. 08SC777.

Two legal issues were decided in Colorado Family Law.

1. Valuation of closely held business assets: Marketability Discounts can apply.
Often times, when you are dividing a marital estate in a divorce matter, a question arises as to the value of one spouse's share in an ongoing business enterprise. If that ownership share was generated during the marriage, then it is a marital asset and subject to division. When a business share is in a company that is not traded on the stock market, there may be no ready trading market for those shares. A marketability discount adjusts the value of specific shares downward to reflect the fact that there is no ready trading market for the shares.

In the Thornhill case, the husband had started and owned shares in an oil and gas service company that was not publicly traded. The Company was valued at 2.5 million, however, the Trial Court had agreed to a Marketability Discount of 33% which brought the value down to 1.625 million for the purpose of division of the marital estate. The wife argued that a Marketability Discount should not occur in a divorce matter (comparing it to minority shareholders when they are being forced out). The Appellate Court disagreed and so did the Supreme Court holding that the Trial Court does have the discretion to use a Marketability Discount if the circumstances warrant it.

2. The Parties' current "Standard of Living" should be looked at as part of the Threshold Test for awarding Maintenance:
When determining if Maintenance should be awarded, the Court looks in part at the following:
a. Whether the spouse seeking maintenance lacks sufficient property, including marital property apportioned to him or her, to provide for his or her reasonable needs, and
b. Is unable to support himself or herself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the house.

The Trial Court in Thornhill considered whether Wife could "maintain her lifestyle" as part of the initial determination that she was entitled to maintenance. The Court of Appeals held that the Court should not have considered her current lifestyle or current standard of living in making that determination. They decided that the Court should only have looked at the standard of living to determine the amount of Maintenance but not for the initial determination of entitlement to Maintenance.

The Colorado Supreme Court overturned the Court of Appeals on this issue. They have made it clear that "the parties' standard of living during the marriage is in fact an appropriate-- and even necessary-- starting point for the trial court's determination of a particular spouse's reasonable needs or whether a spouse would be able to support herself through appropriate employment." In re Marriage of Thornhill, No. 08SC777,(Colo. 2010).

Here is a possible example: Lets say that a couple is getting divorced after 20 years of marriage. The wife works full time at 100,000 per year but her husband has made over one million dollars per year for the last two years. If the parties' standard of living was one that reflected their recent combined income at the time of divorce, then this would be relevant in the Court's determination of the wife's eligibility for Maintenance even though she is able to care for herself at her current income level. The parties' current standard of living is relevant to determining her reasonable needs. The term "Reasonable" is in light of their current standard of living.

If you have further questions about how this case might apply to your situation, feel free to visit our website or call our offices at 303-329-3802 and ask for Leslie Matthews.

We receive many calls from people that are looking to change the maintenance/alimony outlined in their divorce decree. There are a number of factors that come into play first, to determine if maintenance can be modified at all and, if so, by how much.

Court Ordered Maintenance vs. Contractual Maintenance
Courts in Colorado cannot deprive themselves of jurisdiction and so if the Court has determined that Maintenance will be awarded, it always has the option of modifying that award if the circumstances have significantly changed. On the other hand, if the parties have come to their own agreement about Maintenance, they have the right to make that Maintenance Plan NON-MODIFIABLE. When the parties agree on Maintenance it is called Contractual Maintenance as distinct from Court ordered Maintenance. Your attorney would have to review your Contractual Maintenance Agreement to see if the language creates Maintenance that is NON-MODIFIABLE.

Modifiable Maintenance: When and How Much can it change?
If you have a Maintenance Plan that is MODIFIABLE, the next question is if a Court will make a modification. Colorado law states that a Court can adjust Maintenance if there has been a significant and continuing change in the circumstances of the parties that renders the current agreement unfair.

Significant and Continuing Change in Circumstances
You may wonder, what type of change will rise to the level of significant and continuing. Often when people call it is because they have lost their job. Obviously, this is a significant change. However, the question is if it is a continuing change. Being between jobs is not enough to be continuing change. If however, you can show that you will not be able to get another job at the same income level then this may rise to the level of significant and continuing change.

Another example is when the person receiving Maintenance has a significant and continuing change in expenses. We have seen cases where the ex-wife lost her job due to health reasons and those health concerns were going to prevent her from going back to full time work in her field. This could rise to the level that required a modification to the Maintenance Plan.

Another example is when the ex-spouse paying maintenance retires. If this has not been handled in the Maintenance Agreement, it will need to be taken care of through a modification. The question before the Court will be if this is a true retirement or just a way to avoid paying Maintenance. The Court will look to what is common in the field or profession as a retirement age and method of retirement. There is no question that there is a change. The question is, does it need to be a continuous change that renders the current agreement unfair.

Maintenance is one of those areas of divorce law that requires advocacy. There are no formulas or measures to go by. You need to convince the Court that the change in circumstances is significant and continuing and that it renders the present agreement unfair. This needs to be done through the presentation of evidence and through a strong argument.

Feel free to give us a call if you would like to discuss your situation and see if modification of Maintenance is something that is worth advocating for.

We often get calls from people that are planning to move to Colorado and they want to know if they can file for divorce right away.

Ninety Day Rule
Colorado law allows you to file for divorce once you have been domiciled in the state for 90 days.

The question then becomes; what do you have to do to establish domicile. Domicile and residency are pretty much synonymous. Both are determined by the intention of the individual in question. The Court will look to acts and other evidence to support such an intention.

For instance, if you rent and apartment or purchase a home and are living primarily in Colorado, you have a Colorado drivers license, your children are enrolled in school in Colorado. These are all indications of residency.

Once 90 days has passed, you may file for divorce. It is even possible, through case law, for someone not a citizen of the United States to be entitled to a decree of dissolution of marriage in the Colorado Courts if that person meets the resident/domiciliary requirements as set forth in the statute.

What about the other party that remains out of state. Does the Court have jurisdiction over him/her?
In order to get jurisdiction over the other party to the Dissolution of Marriage Action that party must have sufficient minimum contacts with the state. The following are ways that this minimum contact can be met:

1. Filing a joint Petition for Dissolution
2. By executing a waiver and acceptance of service by the out of state party
3. Personally serve the out of state party while they are in Colorado
4. Engaging in sexual intercourse with the out of state party within the State of Colorado if there is a paternity suit or a claim for child support.
5. If the party owns real estate in Colorado that is subject to the Dissolution Proceeding.
6. If there has been an act of domestic violence in the state
7. If there is a matrimonial domicile within the state
8. In a child custody proceeding, if Colorado is the home state of the child at the commencement of the proceeding.

It is important to speak to an attorney if you have questions about the Court's jurisdiction over the spouse who is not living in Colorado. You will need to look at all the facts to see if the Court in Colorado will have jurisdiction over the non-resident spouse.

Businesses are Marital Property
If you are married in Colorado and you or your spouse own a business, that business is all or in part marital property. If the business was opened during the marriage it is all marital property. It does not matter if your name is listed as an owner or not.

Business Valuation is often a Difficult Task
One of the more difficult parts of a divorce process is to place a monetary value on the marital business for purposes of dividing the business between the parties. This is called the Business Valuation Process. Experts typically need to be hired to accomplish this task and, depending on the size, type and level of complexity of the business, it can become a large, difficult and expensive project.

The recent implosion of the US and world financial markets and the demise of the real estate bubble, have caused a recession that has affected most businesses in the US. This has caused a new problem for valuing businesses for the purposes of divorce.

Past Business Valuation Techniques often don't fit in Today's Economic Enviroment
In the past, Business Valuations have used techniques that are based on the presumption that the historical performance of the business is a good indicator of the future trajectory of that business. Fundamentally, the mathematical models assume incremental improvement over time. Typically, the evaluator will look at the last five years of the business to determine the present value. Even if the current year shows a lower profit level, it will be factored in with the prior four years. The result may be a valuation that is out of sync with the realities of what the recession has done to the present and future revenue forecasts for your business.

In today's business climate, it is necessary to find ways to craft an equitable division of a business with the uncertainty of the business environment in mind. Coming to a bottom line figure to use for division may produce an unfair result on either side. On the one hand, the business could be valued too high because the valuation is based on past years and the person running the business has to pay out, to the other spouse, a large amount that is inconsistent with the current conditions and possible future of the business. On the other hand, the business could be in dire straits at the time of the divorce and therefore valued low, yet have a business rebound in one to three years. This leaves the spouse who did not run the business in a position of getting too small a value because he or she just happened to divorce during a recession slump. We are just not as sure these days what the future will bring.

Flexible Solutions for Today's Economy
One solution being used by family attorneys and business evaluators these days is to look outside the box at more flexible solutions. You have to tap into more complex solutions more often used when a business partnership or other entity is dissolving or when there is a buy out of one of the owners. Some solutions that are being looked at are Earn Out Options, Liquidating Events, Stock Sharing Provisions and more.

Without getting into the complexities of corporate law, the bottom line here is that you have to craft a solution that can be flexible, at least into the near future of the business. If you reach a bottom line figure and leave it at that, you may be setting this couple up to have to go back to court time and again as business conditions change. Also, if the business soars back to health in short order following a low valuation settlement number, you might leave the non-business spouse without recourse.

The Need for Protective Provisions and Professional Oversight
In order to have flexibility built in to the separation agreement, there is probably going to be a need for a professional to have some oversight over watching the business results over time and key business changes to assure that there is no "funny business" going on with accounting to skew the numbers as you move forward. There may also be a need for business oriented provisions to be placed in the settlement agreement to assure that the non-business spouse's interest in the business is protected into the future outlined in the agreement. Maintenance/Alimony may have to go to a sliding scale to avoid the attorneys fees it would take to go back to court over and over as the business re-stabilizes. There are a number of avenues to take for overseeing the future of the business. These avenues can run from working together with a financial expert in periodic review meetings to mediation or to working with a Special Master.

Consider Collaborative and Creative Solutions
The need for flexibility in the division of business interests needs to be considered in today's business climate when contemplating a divorce. Creating and maintaining a collaborative atmosphere to come up with a flexible solution is best given the lack of stability in today's business environment. The more creative the couple is willing to be in problem solving the uncertainty of the business's future the more likely they can come to a result that is equitable.

Every business and business sector is unique. You will need to work with your attorney and the appropriate experts to come up with a solution for business valuation in your particular case. There are still cases where a bottom line value can be reached, but in today's economy it is wise to look into flexible solutions as an option.

In a typical Divorce matter, child custody is handled by the District Court that is handling all matters pertaining to the divorce. The District Court Judge is required to take action in the best interests of the children but does consider the interests of the parents as well. However, there are instances where the District Court looses it's jurisdiction over child custody. This occurs when there is a Dependency and Neglect Action (DNN) filed by the State regarding the child at issue in the Divorce matter. When this occurs, all child related issues including, parenting time, decision making and child support will be exclusively handled by the Juvenile Court system. The attorneys for the parents can continue to represent the parents in the Divorce matter in District Court and they can represent the parents in the DNN Juvenile matter but their ability to advocate for the parent regarding custody is significantly reduced once the custody issue has entered Juvenile Court.

The Juvenile Court, like the District Court, must do what is in the best interests of the children but their second priority is the interests of the state, not the parents. The Juvenile Court is charged with deciding if the child is "dependent" or "neglected". The focus of the Court on the parents is only as needed to decide the status of the child. There is little focus on the rights or needs of the parents except that re-unification of the children with the parents is a priority of the state because, if re-unification is possible, it is in the best interests of the child. However, even if the parent does everything they are asked to do by Social Services, there is no requirement to give the child back to the parent if the state believes that there is still a danger to the child. The State has the right to restrict parenting time as well as bring a relinquishment action to permanently remove all parental rights.

When the State Steps in
How does a Dependency and Neglect Action get started? There are certain individuals that are required by law to report possible child abuse or neglect to the state (Social Services) when they have a "reasonable cause to know or suspect that a child has been subjected to abuse or neglect or if they have observed the child being subjected to circumstances or conditions which would reasonably result in abuse or neglect". There are a number of professionals that fall into this category. For the purposes of this blog entry I will only name a few key professions. They include, therapists, doctors, public or private school officials (teachers) or employees, police officers and clergy members, child and family investigators, Veterinarians and animal protection officers. (You can see a full list in Colorado Revised Civil Statutes, Section 19-3-304)

Examples
So, if your child goes to her teacher and tells the teacher that her father inappropriately touched her or beat her or if the child looks significantly neglected, that teacher is required to report these facts to social services. The same would be true if a child revealed information to a therapist that lead the therapist to reasonably believe that the child was being abused or neglected. Another example is if the police are called during a domestic dispute and they find that there are conditions at the home that make it unsafe for the children. I have seen this happen when the police find the mother severely intoxicated or find drug paraphernalia in the home or find sanitary conditions that are at the level of being unsafe conditions for the children. The police are obligated to report a reasonable belief that the children are unsafe by reason of abuse or neglect. Another possibility is that during the Divorce action, a Child and Family Investigator is appointed by the Court to develop a custody recommendation and during their investigation, perhaps in speaking with the child or with a third party, or just in viewing the parents home, develops a reasonable suspicion that there is child abuse or neglect. The Child and Family investigator is obligated to report their concerns to social services immediately.

Different ways the State can step in

Informal Adjustment
Once there has been a report to Social Services, there is usually a Social Services investigation. The investigator can recommend an Informal Adjustment which means that Social Services is going to try to intervene without bringing a formal DNN case. If this is the case, the District Court should be able to maintain their jurisdiction in the case and the Juvenile Court will not get involved. If this occurs, my recommendation is to do everything that Social Services asks for to avoid having the case be brought in Juvenile Court. Perhaps, in working with Social Services the parents can stipulate to a custody settlement in District Court that incorporates the Social Services plan but also considers the needs of the parents.

Bringing a DNN Action
Social Services can decide following their initial investigation to bring a Dependency and Neglect action (DNN). Once this occurs, the custody matter will completely handled by the Juvenile Court inside of the DNN action. The State will have a great deal of control and power in the case. There will be a Guardian Ad Litem assigned to represent the child's interests and The County attorney will represent the State's interests. The Respondents are usually one or both parents and the parent's interests are the lowest priority of the Court.

Records from a DNN Action
If you are in a Divorce action in District Court and there has been a prior DNN action and you want records from that action to use in the Divorce action you may find it difficult to get access to those records. The policy is that the parties to a DNN action need to be able to do their treatment plan to re-unify the family without the fear of records being used against them. So as an attorney for the Mother in a Divorce Action, I would be able to get the records in the DNN that pertain to Mom but I would not be able to get the results of the father's psychological evaluation or the child's evaluation from the DNN Case.

Summary
If a DNN action is brought, you and your attorney will loose quite a bit of control over the disposition of Custody issues. You will be relying on the state to investigate and propose solutions. In this case it is best to cooperate with Social Services. However, If you feel abuse or neglect is occurring when your child is with the other parent, then perhaps a DNN case is warranted. You may want to have your child work with a therapist to get to the facts surrounding what occurs at the other parents home. In any event, it is important to understand that there is a distinct difference in how the custody case proceeds if it is removed to the Juvenile Court by a DNN petition.

Trying to fit a square peg into a round hole
In Colorado, non-married partners, same sex or male and female have not had any statutory protection when they go to dissolve a long term relationship that has operated on much the same terms as a marriage. One partner may have not worked for years during the relationship or the incomes of the two parties may be greatly divergent. They may have shared bank accounts, owned property together, have debt together. Yet at the time of dissolution, if there is a disagreement, the only legal remedies available are a stretch of law that was created for a different purpose such as implied contract law or the equitable remedy of unjust enrichment. Attorneys in domestic partnership cases have also tried to fashion alternative remedies out of the law of constructive and resulting trusts or corporate laws involving joint ventures. However, nothing is specific to an unmarried domestic couple and there is no statutory law to look to as there is for married partners who divorce.

So, people in non-marital domestic partnerships do not have a clear avenue to clear up their disputes. In most cases, what is available does not end up with a result based in equity.

Best Case at the present time
At the moment, the best a non-married couple can do is draft up a Co-Habitation agreement/ Domestic Partnership Agreement that speaks specifically to how assets and debts will be divided if the relationship ends. Contract law in Colorado is available to support this type of agreement.

New Case Law is slowly expanding rights
Slowly there are new Supreme Court cases that seem to support better arguments for dealing equitably with the break up of a domestic partnership. In late 2008 the Colorado Supreme Court ruled in the case of Lewis v. Lewis. The Lewis case discussed the equitable remedy of unjust enrichment as it applies to close family members or confidants. Confidants can be applied to non-married partners. The Lewis case rules that if there was a "mutual purpose" between confidants and one party has profited from a significant deviation from that mutual purpose, then that party is unjustly enriched.

If non-married partners have the mutual purpose to financially or otherwise support the domestic unit, take care of each other for life, and join their resources for the benefit of both, then upon dissolution of their relationship, a court could look to see if one party is unjustly enriched from the deviation of that mutual purpose.

This is the best legal argument yet for an equitable distribution of assets for a non-married domestic partnership in Colorado.

We have not seen a domestic partnership test case yet on this new and expanded legal theory of unjust enrichment. The Lewis case did not involve a domestic partnership. It involved a dispute amongst family members. However, you can certainly make the argument that a domestic partnership is a relationship between confidants.

Hope for the Future
Hopefully, somewhere in the near future, the legislature or the courts will address this inequity that people dissolving domestic partnerships endure. Until then we will continue to look for ways to utilize the laws that now exist to enable domestic partnerships to equitably dissolve following a break up.

In their recent book "In the Name of the Child" Janet R. Johnston and Vivienne Roseby, (recognized domestic violence experts here in the Colorado legal community), recognize three types of domestic violence:
1. Physical Assault including pushing, slapping, choking, hitting etc... or the use of a weapon, sexual assault, unlawful entry or the infliction of physical injury or death.
2. Intimidation: Psychological intimidation and control that includes stalking, threats to hurt or abduct children, threats to hurt others, violence against pets, destruction of property, isolation from friends and family, lack of access to marital resources such as money. and
3. Emotional Abuse: Psychologically damaging acts inflicted within the relationship such as name calling, put downs, undermining the victim's self esteem. The experts state that this type of emotional abuse is dysregulating to the victim and is often more pervasive and more psychologically damaging to the parent than physical abuse.

Colorado Courts recognize the premise that children that are exposed to domestic violence are directly damaged by the experience even though it does not directly involve them. Johnston and Roseby describe this phenomena by stating that the perceived threat of danger or death of the caregiver is not limited to physical violence. Children know when their caregivers are in a state of anxiety, fear, rage or dissociation. The child's brain literally mirrors the parent's nervous system arousal and the child literally and physically experiences the parent's state of being, the trauma state as well as the aggressor's rage state. This is very damaging to the child in both the short and the long term.

For this reason, Colorado has laws that allow Judges wide discretion when there is evidence of domestic violence to provide protection to the victim as well as adapt parenting time to assure that the children are not exposed to domestic violence.

There are a number of avenues available to the victim of domestic violence in a custody matter.

There are three legal avenues to take. The first is Criminal Charges, the second is a Dependency and Neglect Action and the third is the Family Law Domestic Court System.

1. Criminal Charges: If domestic abuse has occured in front of the children and the police are called and criminal charges filed, then the district attorney is going to decide weather or not to bring a no contact order before the Court under criminal laws that would prevent the perpetrator from having any contact with the victim or the children.

2. Dependency and Neglect Proceeding: To bring a Dependency and Neglect action, Social Services would have to be involved. This is a quasi criminal matter brought by the state and in many cases of D&N domestic abuse, drug or alcohol abuse is also involved. The Court in a Dependency and Neglect action has the power to remove the children and place them with relatives or in foster care. The Court also has the power to terminate parental rights of one or both parents if it is warranted under the circumstances.

3. Domestic/Family Law Civil Court: This is the Court where you would file for a divorce or file for an allocation of parental rights if you are not married.

-- Temporary Protection Orders: The Civil Court can order a temporary or permanent protection order even if there is no divorce or custody matter pending. To get a Temporary Restraining Order you can go to the Civil Court in your County and show the Court that you believe there is a threat of imminent harm. Soon afterwards there will be a Permanent Protection Order Hearing held and the perpetrator will have a chance to defend themselves against your allegations. The Temporary Protection Order you receive will be extended, made permanent or dismissed. The Protection Order can extend to your children. If you have already filed for divorce or allocation of parental responsibilities you can ask for the Temporary Protection Order in the same court that is handling your divorce or child custody matter. Also, if a Temporary or Permanent Protection Order has been issued and you subsequently file for divorce, the law requires that notice of prior protection orders must be disclosed in the Petition for Dissolution of Marriage. This allows the Court to be aware that there are domestic violence issues in the case and promts them to send out a notice concerning domestic violence counseling and a request to obtain support services for the children.

-- Automatic Temporary Injunction: When you file for divorce in Colorado an Automatic Temporary Injunction goes into effect as soon as the opposing party is served. Under this injuction both parties are enjoined from molesting or disturbing the peace of the other party. The police are required to use every reasonable means to enforce this part of the injunction. So, if you have a pending divorce action and your spouse is "disturbing your peace" you can call the police and they will have to enforce the injuction. Just make sure that you have a copy of your Petition for Dissolution of Marriage with you. Disturbing the peace is a lower bar than domestic violence.

-- Temporary Orders: Temporary Orders Hearings occur when the parties cannot agree on how to handle financial and child related matters during the pendency of the divorce. These hearings usually occur within three or so months from the date of the Petition for Dissolution being filed. At this Hearing the Court can specifically order that one party not disturb the peace of the other party or of any child. The Court can order that one party be exluded from the family home or home of the other party upon a showing that physical or emotional harm would otherwise result. The Court may order a Temporary or Permanent Protection Order. Other issues are also addressed such as who will pay what bills and temporary child support and/or maintenance can be ordered.

-- Permanent Orders: This is the final Hearing before the Court if the parties cannot come to an agreement. At this hearing parenting time and decision making regarding the child will be decided. The Courts in Colorado recognize the damage to children that domestic violence causes. They also must weigh the fact that it tends to be in the best interest of children to have contact with both parents. The Court does have the discresion to not order any parenting time with a parent if, after a hearing, the court finds that the parenting time would endanger the child's health or significantly impair the child's emotional development. The Court is required, however to look first for the least detrimental alternative to ending all contact beween a parent and a child. As for decision making, if there has been domestic violence, the presumption is that the parents cannot make decisions together and sole decision making will be seriously considered in most cases. The Court will also refrain from ordering mediation between the parties if there has been evidence of domestic violence.

Get Expert Adivse
My advise on dealing with irrevocable trusts in Divorce litigation is to make sure you have good experts involved both on the issue of "Characterization of the Interest" as well as the "Valuation of the Interest".

Every Trust is different and the provisions of the trust must be fully evaluated to determine if the party's interest in the trust will be considered property by the court in a divorce action.

Remainder Interest
Generally speaking, the Court will look at the level of control that the party has over the trust and if they have a "remainder interest". A remainder interest means that it is a certainty in the trust instrument that the benificiary will recieve the property contained in the trust, at some point (unless they do not live long enough to get it). For instance, some trusts are set up so that at a certain age, the party will get the funds (ie; have full control over the funds). This is considered a remainder interest. Even though the party has no control today, they do have a "vested interest" in the funds. Generally this will be considered to be the party's separate property. Once this is determined, any increase in value in the trust during the marriage will be considered marital property even though the party has had no access to the trust assets during the marriage.

Discretionary Power placed with the Trustee
The other issue to look at is the party's power and control over the trust assets. Generally speaking, the more the trust is set up as "discretionary" in the trustee, the less likely it is going to be held as property of the beneficiary. In other words, if the party in the divorce has little or nothing to say about what he or she is going to get and when, that party does not have control over the property and therefore the court would not hold the trust to be his or her property.

An interesting circumstance may be that the party has access to the income from the trust and uses that income to live an extravagant lifestyle but has no control or say over the corpus of the trust. The court could find that there is no property interest. The only avenue that the spouse has in this case is to make a case for maintenance. The spouse would have no claim against the property of the Trust itself as part of the division of the marital estate.

I want to emphasise again that this blog entry is to give you a general idea about how the courts veiw trust instruments in terms of determining if they are property in a divorce case. In any particular case you need to individually review the trust with experts and a good divorce attorney to see how a court might view the trust under the facts and circumstances of your case.