Recently we have been seeing a number of divorce cases for people over 70 years of age. In one case the wife was 80 and the husband was 88. You may be surprised, I was, but I learned quite a bit about the special needs of people divorcing in their elder years.

Legal Separation vs. Divorce: In the case of our 80 year old client, she had little income and had acquired a very small pension. Her husband had been a federal employee and had a federal pension. After researching the federal pension, we found that she would be much better off financially if she legally separated rather than divorced. She could maintain her health benefits and would be able to separately receive half of the pension check. She would loose her health benefits if she divorced and she might loose her death benefit if her husband pre-deceased her. In this case it made an enormous difference to stay married but legally separate. Our client was pleased with this option. She had no interest in re-marriage. She just wanted to live on her own. This type of inquiry is very important in divorces with people that are well into retirement.

The Stress of Change: We all understand that there is a great deal of stress associated with any divorce. However, there are added complications with the elderly. Disrupting an elderly person's surroundings and routine are particularly difficult. If you have ever assisted a family member to move from their home to a assisted living situation, you know what I mean. The added stress for the elderly in a divorce makes the support of family, friends and community a very large necessity. We had one elderly client who was adamant about divorcing but after moving out and discovering that her two adult children were not supportive, she found that her health was deteriorating and ultimately decided to move back in with her husband. She could not tolerate the stress of formulating a new life on her own. This situation might have been different with family support.

Financial Stress: Unless the elderly couple has significant personal wealth, in most cases the two individuals will not be able to maintain the lifestyle that they are accustomed to together. This includes the ability to move into assisted living as a couple. The costs of assisted living for a couple are considerably less than for two individuals. The decrease in standard of living is often the factor that can keep an elderly couple together even when they have trouble tolerating one another. However, with the increase in the number of couples where both were in the workforce for most of their adult lives, we may find more and more elderly couples willing to deal with the financial downside of divorcing after 70. What we have heard from elderly divorcing couples is that they put up with the other person's personality issues for so long and they only have so many more years to live and they just can't tolerate it any more.

I would suspect that as we see the baby boomer generation continue to age that we will see more divorces in the third third of life. There seems to be more of an expectation of life being enjoyable and an unwillingness to stay in a situation that continues to be untenable.

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.

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 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.

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.

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.

When people go through a divorce, especially when there are children involved, there is almost always a strong emotional component. How could there not be. Research shows that divorce is right up there with a death in the immediate family as one of life's most stressful times.

The legal process in Colorado is set up to deal with two major issues. The splitting up of the marital estate and financial support as needed on the marital side and doing what is in the best interests of the children when dealing with parental responsibilities. The court system is actually set up to avoid emotional issues between husband and wife. This is a no fault divorce state and the only wrongdoing that is considered by the court is financial wrongdoing or endangerment due to domestic or child related violence or endangerment to the childs emotional development.

When you are going through the divorce process there is quite a bit of work to do to gather all of the financial information needed and to make decisions on what you are asking for in terms of division of property and debts, maintenance if warrented, child support and parenting time. It is easy for emotional issues, though completely normal, to get in the way of clear and wise decision making in a divorce case.

In most cases, your attorney is not the best resource equipped to deal with the emotional blocks that might arise for people during the process. Some people just need to talk it through. You can do this with your attorney but for a much larger fee than a divorce coach or therapist and perhaps with not as much expertise. Some people find it very hard to get the financial information together. Often times there is an emotional block at play that shows up as procrastination but the attorney ends up spending time working through the issue with the client.

We have found that even in the most emotionally difficult divorce situations that the addition of a coach or therapist to collaborate with can make all the difference in decreasing legal fees and making good and clear decisions in the divorce process.

Our firm uses a form that allows the coach/therapist to collborate with the attorney without loosing attorney/client privilege or therapist/client privilidge. The collaboration usually goes no further than letting the coach know what is coming up during the divorce process and what some of the emotional blocks might be to making good decisions. The coach/therapist is then left to decide the best course of action to support our mutual client in moving past the emotional block and making the best decisions for themselves and their family. With this support most clients are able to use their attorney wisely, spend considerably less on legal fees and end up making good long term decisions.

Matthews & Matthews PC will be starting a series of Webinars this October for people who are thinking about getting divorced and want to understand how the process works, the key issues that must be addressed and how to prepare themselves before filing any paperwork.

Webinar Host:
Leslie Matthews J.D., Managing Partner, Matthews & Matthews PC

Upcoming Dates:
Wednesday, October 21st from 12:00pm to 1:30pm
Thursday, October 29th from 12:00pm to 1:30pm

Registration:
There will be no fee for our October Webinars. To register, go to www.matthewslaw.com and register on line or call or email Sandy at 303-329-3802 or sandy@matthewslaw.com. Sandy will need your name, address, phone and email. All information will be kept confidential. Sandy will then set you up to be able to log into the Webinar at the appointed day and time.

Course Information:
-- You will learn what you need to know to make a wise decision about divorce from the privacy of your own computer screen.
-- Complete confidentiality
-- Seminar is designed to be done over an extended lunch hour

As a family law attorney, I have seen the divorce process upset too many unsuspecting clients because they had not had the opportunity to think it through or prepare for it ahead of time. Attorneys bring important legal expertise; however, they may not always view the steps of the divorce process through the same lens as a client. What may seem normal and matter-of-fact to an attorney, might seem surprising or overwhelming to a client. That is the reason I have designed this program from the perspective of the person going through the divorce process.

To read more about the Getting Divorced in Colorado WEBINAR go to our website at www.matthewslaw.com and click on resources and then on seminars.

For all divorces on or after July 1st, 1997, the Court will not require that the parties pay college expenses. Child support will continue until 19 years of age. At 19 the child is considered emancipated and the party paying child support can petition the court to end child support payments.

However, divorcing parents can agree to pay for college expenses as part of their separation agreement and final decree. Once the Court orders incorporate the agreement for college expenses that agreement becomes a legal judgement and can be enforced as a Court Order. In other words, if the expenses are not paid the party withholding payment can be brought up on contempt of court charges for not doing so. This is a much heavier penalty that just a mere breach of contract. The Court has broad powers to enforce a Court Order.

It is important to note that any agreement for support of the child (including an agreement to pay college expenses) can be modified by the Court. The party agreeing to pay college expenses can later come back to the Court and argue that there has been a substantial and continuing change in circumstances from the time that the agreement was made. If they can prove this to the Court, the Court has the power to adjust the amount of the payment in consideration of the change in circumstances.

For divorces that were final before July 1st, 1997, there may be a Court imposed requirement for parents to pay reasonable college expenses up to the age of 21. However, the Court cannot order that a parent pay more for these educational expenses than he or she would be required to pay for child support. The Court will not require both child support and college expenses. It is only one or the other. The Court Order for payment of reasonable college expenses can be modified the same way child support may be modified; on a showing of substantial and continuing changed circumstances by the party seeking the modification.

In Conclusion, it does not matter whether the requirement to pay college expenses is Court ordered (prior to 1997) or if it is by agreement and incorporated into the divorce decree (after 1997), in both cases the agreement/requirement to pay college expenses can be modified if there is a substantial and continuing change in circumstances of the party seeking the modification. What constitutes a substantial and continuing change is a question of fact to be argued before the court.