Why Family Law?

Over the years I have often been asked why I chose to practice family law.  Everyone agrees that family law cases can be complicated and stressful.  Many lawyers who start out practicing family law get burned out quickly due to the high conflict and intense emotions.  Why would a lawyer want to practice family law?

The answer for me started with children.  Early in my career, I was asked by the courts to represent children as a Guardian ad Litem.  That led me to learn more about the best interests of children in dissolution of marriage cases which led me to handling more and more dissolution cases.  In addition to those best interest issues, I found financial issues to be complicated but fascinating.  There was always more to learn and working with other professionals to make certain my clients financial interests were protected gave me great satisfaction.  My clients have always appreciated the thoroughness of the work we do and how we explain the financial issues to them to help them make good decisions.  I still get calls from clients from long ago who want to say hello and let me know how they are doing.

Family law allows a lawyer to represent a person rather than a business or government agency.  It allows the lawyer to work closely with an individual to help him or her through a difficult transition in their lives.  The lawyer has the chance to help parents focus on their children’s needs and try to keep the negative emotions to a minimum.  While there can be a great deal of stress in family law, there is also a great deal of satisfaction.  That’s why I chose to practice family law

College Expense Orders

This time of year, when the students have returned to the University of Colorado, we often are asked about college expense orders entered as part of child support.  Colorado was one of the few states where the courts entered such orders as part of a Decree of Dissolution of Marriage.  This was viewed as aggressive by many and in the 1980’s Colorado legislature statutorily overruled the line of cases which authorized such rulings.  Today, the Colorado courts do not have authority to enter college expense orders unless both parties agree.  If the parties do agree, however, the courts will enforce the agreement.  While few divorcing couples today negotiate such agreements, when they do, care must be taken to make certain both parties know what they are agreeing to fund.  The cost of college has been increasing dramatically.  Agreeing to pay a percentage of significant but uncertain future college costs can be risky.  The parties should define carefully what is included in the term “college expense.”  Does this include tuition, room and board, books and fees only?  Does it include such costs at an in state public school rate or at only private school?  Does it cover four years, five years or more?  Does it include other expenses?  How is the expense to be divided?  Is the percentage fixed or will it vary depending upon the incomes of each party?  What happens if one party loses his or her job and cannot afford to fund his or her share of expense?  What happens if one party remarries and stops earning an income?

While many divorcing parties want to help fund college expenses for their children, an open-ended and ill-considered college expense order can create financial havoc.  As with any other contract, the potential unintended consequences means that the agreement should be reviewed by legal counsel before signing.

Practicing in Louisville, Colorado

Dale E. Johnson, P.C. has offices in Louisville, Colorado, a small town of about 20,000 and located only five minutes from Boulder.  We represent individuals who live all over Boulder County as well as persons living in Jefferson, Broomfield and Larimer counties.  We moved to Louisville from Boulder in 1999 to provide offices that were easier to access for our clients.  The traffic  and parking issues that plague Boulder are not present in Louisville.   We work hard to help our clients resolve cases early on and have offices with multiple conference rooms, space and technology to provide a comfortable setting for meetings and mediation.  Louisville has been recognized nationally as one of the best cities of its size in the United States.  Clients often comment on how much they appreciate the convenience of our Louisville location. 

Providing Legal Consultation

Providing legal consultation services are becoming more common for family law attorneys. Dale Johnson has been practicing for forty-two years and has a great deal of experience with complex asset cases.  While Dale E. Johnson, P. C. has primarily focused on traditional representation of clients, increasingly, the firm is asked to provide consulting services to people who want to try to settle their divorce on their own.  Lawyers can be of great assistance in helping individuals who don’t want to hire a traditional, “full representation” attorney, analyze the strengths and weaknesses of a case.  Lawyers can provide guidelines for how to obtain necessary information and help a client mediate and settle their case. 

Consulting services are not a substitute for regular representation and depending on the complexity of the issues or other factors, may not be appropriate in every case.  However, it is generally in everyone’s best interest to have an attorney review any divorce settlement before it is finalized, signed and filed with the Court.

Family Law Legislation

In Colorado, family law legislation is sometimes introduced and passed late in the legislative session. Unfortunately, many of the last minute bills are ill-considered and appear to be driven by negative personal experience of a sponsoring legislator or a campaign contributor.  Fortunately, in this session no such last minute legislation appeared in Colorado. There were some minor changes to last year’s maintenance legislation to correct some inconsistencies in the original bill.  But there were no late surprise bills introduced and passed just before the legislative session ended. 

Start-Ups in Boulder

Boulder County is the land of the Start Up.  According to the Daily Camera, Boulder is the “top city” for start-ups in the United States.  When investors in startup companies are involved in a dissolution of marriage there are a host of issues related to competing disclosure and non-disclosure duties, SEC insider trading and marital fiduciary duties that make these cases challenging.  If you are an investor or the spouse of an investor in a startup and are possibly moving towards a dissolution of marriage, make certain you get legal advice early on regarding the marital property rights involved and the effects of various disclosure and other duties that may be part of the ownership of those rights.  Moving ahead without understanding these duties can risk serious financial consequences. 

Investors and Divorce

Boulder has many investors and investor groups that risk venture capital in promising startup companies.  These startups are usually non-public business entities with a small group of equity owners.  The startup will have significant risks as well as potential upsides that justify the investment.  When an investor in such a company finds himself or herself in a dissolution of marriage proceeding, the problem with valuing the interest, structuring a buy-out or settlement based upon an in-kind division of the investment rights can be challenging.  In addition, most startups require investors to sign a non-disclosure agreement that prohibits the investor from conveying company information to third parties.  The term “third party” would include the investors’ spouse.  But spouses in dissolution of marriage action have a duty to reasonably disclose material financial information to each other.  To discharge these seemingly competing duties is but one of the challenges that must be addressed when an investor in a startup becomes a party in a dissolution of marriage action. 

Start-up companies

When someone who has an ownership interest in a private (not publically traded company) goes through a dissolution of marriage, there are often challenges associated with dividing that interest.  There are many entrepreneurs in Boulder County who are involved with start-up companies where the spouse receives equity interests as part of the compensation package or as part of direct investment, equity interests.  These equity interests can have many names and the legal rights attached to each one is governed by the grant documents.  Because they are not publically traded the interest can be difficult and expensive to value.  Even an “in-kind” division which avoids valuing the interests can be complicated.  Spouses in a dissolution of marriage have a fiduciary duty to provide reasonable financial disclosure to one another.  However, most of these private companies require the spouse who has the equity interest to sign a non-disclosure agreement (NDA) prohibiting the disclosure of information to third parties (including spouses).  The District Court, however, has subpoena power to compel production of documents from the company.  It is generally in the company’s best interests to cooperate and provide these documents to the non-owner spouse so as to keep the information “in house” and between only the divorcing spouses.  But many corporate counsels for these companies have little understanding of the extent of the Court’s subpoena power of the “fiduciary duties” imposed by the Colorado dissolution of marriage statute.  The inherent conflict between theses competing interests and responsibilities creates significant legal challenges but also opportunities to work cooperatively for everyone’s benefit. 

Proposed Colorado Marriage Education Act

The Denver Post has just reported that some folks from California are proposing a ballot initiative that would require anyone seeking to marry in Colorado most first complete a ten hour pre-marriage education course. If this were a second marriage, the course could be for twenty hours.  If for a third marriage, thirty hours of education would be required.  One assumes the proponents of this ballot initiative would be willing to teach the class (provided they were paid for their services).  If the couple getting married could not afford the cost we can assume the proponents would want the tax payers to foot the bill.  The proponents don’t seem to worry about this proposal infringing upon anyone’s right to marry or the new level of government intrusion into everyone’s private life that would occur.  While educating young adults about certain necessary “life skills” (e.g. parenting, filing tax returns, buying insurance, and basic health issues) might be something we could all agree could be taught in every high school, mandating marriage classes before a couple could marry is a bad idea.

            Marriage and civil unions are something that should not be entered lightly.  There are legal and financial issues that couples should consider before tying the knot.  Not everyone does but, that should be their choice. We are seeing more and more couples negotiate pre-nuptial agreements to try to get agreement on their financial situation before becoming legally joined. That is also their choice and should not be mandated by the State. Having children is a significant commitment that couples should discuss and carefully consider if at all possible. Many more couples today have children without getting married than they did forty years ago.  All of these choices are part of our current culture.  Whether one agrees with these choices or not, the State should not be making those choices for us.

            We live in an age where many believe the government needs to regulate as much as of our private lives as possible.  While it is clear that some government regulation is necessary, this proposal goes well beyond anything the citizens should tolerate.  

Equal Parenting time?

 

Is there a presumption that children should spend equal time with each parent following a dissolution of marriage?  While some parents believe this either should be or is the case, there is no such presumption in the Colorado statutes or in the case law.  There have been unsuccessful efforts in the past to have the Colorado legislature pass laws creating such a presumption but the efforts have never succeeded.  The test for parenting time remains “best interest of the child” and requires the Court to decide parenting time based upon the facts in each case.  While many parents see no reason, outside such things as child abuse, not to assume equal parenting time is best for children, the research in this area does not support a “one size fits all” approach.  While equal parenting time may be the best plan in many cases, the research that supports the facts in each case be carefully considered.  Parents usually are in the best position to decide what is best but, if they cannot agree, care must be taken to address the issues based upon what is truly best for the child and not what feels best for the parents. 

CO Legislature passed a large number of laws affecting family law

This year the Colorado Legislature passed a large number of laws affecting family law.  Colorado has new legislation relating to Civil Unions, Maintenance, Prenuptial Agreements, Child Support and Domestic Violence.  Some of these laws are controversial.  Before you proceed with any family law matter, you should check with an experienced family law attorney to make sure you understand how these legislative changes impact your case.  

Maintenance Bill- Updated 5-13-13

On Friday, May 10th, 2013, Governor Hickenlooper signed into law the new maintenance “formula” bill.  While the formula is not presumptive and applies only to cases where the combined ­­­­gross incomes are $240,000 per year or less, there will be many who believe that it should apply to most dissolution of marriage actions.  This is a major change in Colorado law.  Any analysis of a dissolution of marriage action must incorporate the effects of this act on the case.

UNIFORM PREMARITAL AND MARITAL AGREEMENT ACTS

Colorado is now considering whether to enact the Uniform Premarital and Marital Agreement Act (UPMAA).  In 1984, the Colorado legislature passed its version of the Uniform Marital Agreement Act (UMAA).  Many states passed versions of this act at that time but there was little uniformity in what the various states passed.  Over time, the differences between how each state handles prenuptial and marital agreements have only grown due to amendments and case law.  The proposed UPMAA was promulgated by the Commissioners to try to establish more uniformity nationally.

As with current Colorado law, the proposed UPMAA requires a certain level of financial disclosure.  Failure to accurately disclose an asset or debt could lead to the entire prenuptial agreement being held invalid.  Often times, clients seek assistance from their accountant to help prepare these disclosures.  It is important that the accountant understand the disclosure requirements and the danger to the client of not providing reasonably accurate disclosures.

On February 28, 2013, this office has invited a number of accountants, tax attorneys and financial planners to attend a one hour seminar to discuss these as well as some other issues that are important to any of their clients who are dealing with prenuptial agreements or other family law matters. As more and more couples are seeking premarital agreement protection, understanding the requirements for validity and enforcement will likely become increasingly important.

What to Expect at Your Initial Family Law Consultation?

If you schedule an initial interview with a family law attorney, an important thing to keep in mind is to make certain you ask the questions that are important to you. It is imperative that you be fully honest with your attorney so he or she can help you. The information you provide your attorney is protected by the attorney/client privilege but providing insufficient information will undermine the attorney’s ability to provide you with useful advice. Sometimes it helps to make a list so you don't forget to ask the things that really matter to you before the meeting. The cliché, "There are no dumb questions," is particularly true in family law. Your attorney does not expect you to understand all of the issues or legal terms and will do his best to avoid complicated legal language. But if you don't understand anything regarding the advice you get, ask for clarification. Be on time.  Don’t bring your children as they can be a distraction and it’s not appropriate to involve them. Depending on your situation, you'll be informed by the staff as to what kinds of documents would be helpful to bring along with you to your initial appointment. These may include the following:

 

An outline of the date of marriage and timeline of significant events in marriage.

Information about any prior marriage of either spouse

A copy of any domestic contracts (e.g., a prenuptial agreement).

Information about any previous ongoing legal proceedings

Dates and particulars about any previous separations, attempts at reconciliation, or marriage counseling.

The name of your employer and your spouse's employer and some income information. 

Do losses offset gains for Marital Appreciation purposes?

On January 17, 2013 the Colorado Court of Appeals announced its decision In re Marriage of Krejci.  The court cited In re Marriage of Powell, a case this office handled, to discuss the grouping of assets under the umbrella of a larger asset to determine whether marital appreciation had occurred.  Would losses in some parts of the umbrella asset offset gains in another part? Ever since In re Marriage of Burford (1997), the Colorado Courts have held that losses in one separate asset cannot offset appreciation in another separate asset.  But when a party has an account, such as an IRA, which is composed of many smaller assets such as stocks that are regularly traded, should the court treat that account as one asset?  Or should the court only count the stock gains and disregard the stock losses in the account?

In Powell, the facts allowed us to argue for the court to treat the IRA as one asset and not a collection of smaller assets.  In Krejci, the wife was unsuccessful in trying to link various liquid accounts under an umbrella “inheritance asset”.  This resulted in a much larger marital estate to be divided by the court. As with everything else in family law, the facts and how they are presented, drives outcomes.  Using business entities to hold assets may offer increased protection.  Having a prenuptial agreement may offer the best protection.

Maintenance Bill

A new maintenance bill has just been introduced in the Colorado Legislature.  There were a number of professional organizations who were providing comment to Representative McCann and each new version of the bill seemed to have changes that reflected those comments.  While no one seems completely happy with the current bill, the need for more uniformity in maintenance orders across the state is a powerful force that weighs in favor of the “formula” approach for maintenance awards.  The bill only applies to marriages of at least three years duration and combined gross income that do not exceed $240,000 per year.  The language in the latest version of the bill also adds such things as suspension or termination of the maintenance if the payee “cohabits” for six months or longer with “another person”.  The bill appears to require a judge to make certain pro-se parties understand what they would be giving up if they agreed to “waive” maintenance.  All proposed legislation is subject to being amended and the politics of any family law legislation can sometimes result in last minute and ill-considered changes to any bill.  The bill as currently drafted would not apply to actions filed before January 1, 2014.  If maintenance is an issue for you, you should pay close attention to this bill as it will substantially alter existing Colorado law.  If you have questions about how this bill might affect your case, call us and set a time to meet and discuss your situation. 

CHILD SUPPORT: Tips & Advice

When families with children separate, child support is usually one of the matters to be resolved.

The Colorado statute governing child support is sometimes confusing and allows discretion and deviations in certain situations. The statute has been amended numerous times in the last 25 years, and it is currently the lengthiest section in the state’s Uniform Dissolution of Marriage Act.

Here’s where our experience matters.

At Dale E. Johnson, P.C., we’ve been practicing Colorado family law for more than 40 years. We’re familiar with the intricacies of the Colorado statute and can work efficiently and effectively to help you make sure your child is appropriately supported.

Our process begins with organization. 

Because of the complexity of the child support statute, it is important to have accurate and documented evidence of all sources of income and all expenses for the children. Good record keeping is essential to both analyze and present the case for an appropriate child support order.

We can help you organize those facts and documents to determine, as closely as possible, the child support level. Organization and experience allow us to assist clients in reaching resolution on child support matters efficiently and effectively.

To learn more, see our Helpful Information page on Child Support or call us at 303.666.4468.