Family Law

Spousal Support
In circumstances in which there is insufficient property to provide income for the support of a spouse or that spouse does not have the capacity to provide his or her own reasonable support (or is caring for a child under 30 months of age or who is incapacitated), spousal support (maintenance or alimony) may be ordered for a period of time. If the parties cannot agree as to the necessity, amount, or duration of spousal support, the Court or arbitrator will consider evidence concerning the maintenance-seeker’s employment, education, work experience, age, mental and physical health, length of the marriage, and standard of living during the marriage as well as the potential maintenance-payer’s ability to meet his or her own financial needs while meeting the needs of the maintenance-seeker and enter orders as to the necessity, amount and duration of such support. If the parties can reach agreements as to spousal support there are more options available to them than can be obtained through the courts. 

Recognizing that some people want to manage, present and control their own legal matters but face a significant lack of information and training as to the legal system, Radeff & Hart, P.C., is willing to provide “unbundled legal services” providing any or all of the following without formal representation: drafting, document review, coaching, estimation, advice and information on substantive and procedural family law cases on a “by session” basis. 

This “unbundled” approach, sometimes referred to as discrete task, means that the client can seek assistance limited by the parameters established by the lawyer/client agreement. By way of example, a divorcing party might schedule a conference to review the documents he/she had prepared for appropriateness prior to filing them with the court. Another might request a detailed explanation of the parameters of the child support statute or the strategy necessary to obtain court approval of an out-of-state move with a child subject to a parental responsibilities order.

Under the “unbundled” model of providing legal services, the client maintains full responsibility for his or her case. Each session with counsel is limited to the topics agreed to in advance and is paid for at the end of the session based upon the time spent with the client. It can provide significant savings, information, assistance and peace of mind to clients who want to do their own legal work.

Protective orders are injunctions or restraining orders precluding contact between the perpetrator and victim in situations of domestic abuse, assaults, threats of bodily harm, emotional abuse of the elderly or of an at-risk adult, and stalking. Separate laws protect children. Protective orders are usually sought on an emergency and temporary basis. After notice to the perpetrator, a follow-up hearing makes the order permanent for a specified period of time. 

Usually, one of the attorneys in the Firm is available to meet the emergency needs of our clients and to provide information as to how the client may best be kept safe under his or her circumstances.

Colorado law provides for two types of assistance to children involved in divorce, paternity, parental responsibilities and adoption proceedings: a child legal representative “CLR” (§ 14-10-116, C.R.S.) and/or a child and family investigator “CFI” (§ 14-10-116.5, C.R.S.). Both are appointed by the Court and paid for by parents and/or state funds, however their roles are very different. 

A child legal representative (CLR) is an attorney mandated to represent the “child’s best interests” giving due regard, but not necessarily adherence, to the child’s wishes in the matter. The child’s counsel is a participant in the legal proceedings, able to subpoena witnesses, produce evidence and make arguments to the Court as to the child’s best interests.

By contrast, a child and family investigator (CFI) is not necessarily an attorney, but a trained or experienced person charged with investigating and reporting of a child’s circumstances and making recommendations to the parties and the court as to parental responsibilities for the child.

All of the attorneys with the Firm are experienced in working with CFIs and child legal representatives and several members of the Firm are State-approved for Court appointment as CFIs.

Colorado recognizes that in some instances it is in a child’s best interests for a step-parent to adopt the child, terminating the rights of one of the biological or legally determined parents.

Adopting a step-child in Colorado requires the consent of the spouse (the step-parent’s husband or wife – Parent A), and either (1) consent of the terminated parent (Parent B), or (2) a Court Order terminating Parent B’s rights. Grounds for termination include allegations that Parent B has abandoned the child, or failed to pay support for at least one year.

Whether Parent B agrees to the termination and adoption, or the Court terminates the rights of Parent B, both require the approval of the Court, who must find that it is in the child’s best interests.

When deciding whether a step-parent should seek adoption of a step-child, there should be consideration of the effects on the child, as well as the legal burden required to terminate. It is a highly technical action that requires the skill and knowledge of the law.

Once the adoption has occurred, the step-parent has all the legal rights and obligations to the child, including the duty of support.

Colorado Statutes (C.R.C.P. Rule 17(c), C.R.S. § 15-14-115) and the Court’s decision in In re Marriage of Sorensen (2007) allow for the appointment of an attorney to represent the interests of a party in a domestic relations proceeding if the Court finds that the party:

1. is mentally impaired so as to be incapable of understanding the nature and significance of the proceeding;
2. is incapable of making critical decisions;
3. lacks the intellectual capacity to communicate with counsel; OR
4. is mentally or emotionally incapable of weighing the advice of counsel on the particular course to pursue in his or her own interest.

Appointing a Guardian ad litem (GAL) is one way in which a party’s interests and rights can be protected, as the party in question is deemed unable to make their own considered choices regarding strategy or other proceedings.

A GAL is often instructed by the Court to familiarize themselves with issues pertaining to the client’s support, care, mental health, physical health, property, and general welfare, in order to make recommendations to the Court on behalf of the client’s best interests. GAL appointments may be paid by the State or by the parties. The attorneys of Radeff & Hart, P.C. are regularly appointed by the Courts to serve as Guardian ad litems in domestic cases.

There are a variety of reasons a person might seek a pre-marital or marital agreement: preservation of an existing estate for children from a prior relationship, preservation of pre-marital property with its income and accumulations as separate property, a bad experience with a prior divorce, a willingness to share property but only after a certain period of time and the like.

Parties may make agreements as to financial matters arising out of their marriage either prior to the marriage or at any time after the marriage. Such agreements may conform to or alter Colorado law regarding the ownership of property and debt obligation both during the marriage and after, whether by divorce or death. Agreements may be made as to spousal support and attorneys’ fees arising from a dissolution of marriage action, but these two specific agreements will only be upheld if they are fair at the time of divorce.

Because the effectiveness of such agreements is dependent upon complete financial and legal disclosure between the parties, each must generally have counsel, even if one party pays for the other’s attorney. Furthermore, there must be sufficient time for the parties to thoroughly discuss the issues to be addressed in such agreements and to achieve a willingness to execute the agreement. Thus, the hectic 30 days before a wedding is not the best time to be negotiating, drafting and executing such agreements.

While the primary work of the Firm is to achieve the best possible resolution for our clients by negotiation, mediation, collaborative proceedings, arbitration or litigation, there are occasions when these processes fail. Failed negotiations, mediations or collaborative proceedings lead to third party decision makers: arbitrators or judges. When an arbitrator or judge makes an error as to the applicable law or makes a decision that is so biased, arbitrary or capricious that a reasonable person would not have come to the same conclusion, an appeal to the Colorado Court of Appeals and/or the Colorado Supreme Court is possible. The appellate courts rely upon the evidence presented in the trial courts and the legal briefings and arguments of counsel; there is no further information presented from the parties themselves.

The Firm accepts appellate work from our own cases, and from the work of other attorneys at the trial court level.

Once entered as part of a Decree, property and debt divisions cannot be modified except in cases of fraud. However, matters concerning children can be modified as circumstances change (and with maturing children, they almost always change in some manner) and maintenance (spousal support or alimony) may change if the financial circumstances of either party changes significantly after the decree. 

Modifications to Parental Responsibilities
For a variety of reasons, including something as simple as the child’s increased maturity or as troubling as a bad situation for the child, a parent may seek a modification of decision-making, primary residency or parenting time sometime after the entry of the original divorce decree and court orders.

To change a child’s primary residency or the terms of the decision-making authority, one must show that the other parent has agreed to the change or that the child’s current circumstances endanger their physical health or emotional development and that the presumed hard of changing the child’s residency or decision-maker, is outweighed by the advantage of a change for the child. Without the other parent’s consent, these are high hurdles to prove, but may be appropriate under the circumstances for a particular child.

The modification of parenting time, particularly to increase the non-residential parent’s time with the child toward a more even division of time between households is far easier to establish, provided regard is given to the child’s academics, activities and peer interactions. To lessen the non-residential parent’s time, one must meet the endangerment/impairment standard for a change in residence.

Modifications to Maintenance
A modification of maintenance (spousal support or alimony) requires showing that there has been a change of circumstances so substantial and continuing as to make the original determination of the amount and duration of maintenance unfair. As the Colorado statute requires, the changes must be substantial and continuing and there have been several cases decided by Colorado appellate courts establishing parameters for what is substantial and continuing. The Court can modify the amount or duration of spousal support to increase, decrease or terminate maintenance completely from the date of filing for modification.

Should a Motion for Modification be brought by one party or the other, the same kinds of financial disclosure required for entry of the decree is required to update the parties’ respective financial circumstances. Thereafter, if a substantial and continuing change of circumstances has been shown, the parties and the Court will consider the same factors as those utilized to set the support order initially.

Modifications to Child Support
As with a modification of spousal maintenance, a modification of child support requires showing that there has been a change of circumstances so substantial and continuing as to make the original order inappropriate or that the original order did not provide for medical insurance or expenses of the child. If the parents’ incomes have changed enough to make a 10% change in the total child support calculation, it is presumed that child support should be modified. 

In addition to increases in parental income as a basis for modification, extraordinary expenses, medical needs, increased cost of health insurance and a variety of other facts can lead to child support being increased.

Both parents have a financial obligation of support to their unemancipated children and either spouse may have a duty of support to the other spouse arising out of an agreement or Court Order.

Child Support
By Colorado law, both parents must provide support for their children either through payment of a child support order or by direct payment of expenses such as housing, utilities, food, clothing and educational expenses. Further, the State of Colorado has set minimum payment standards (Child Support Guidelines) that utilize a formula based on the number of children for whom support is sought and the number of children from other relationships for which support is paid, the income of each parent, the costs of health insurance or other medical needs, extraordinary expenses and the amount of time each child is in each parent’s household.

When child support is not paid as ordered, there are several means of attempting to collect those past due amounts including wage assignments, garnishments, liens and contempt of court proceedings.