Q: What happens if you have divorced your spouse and then later find out they did not tell you about certain assets that they owned during your marriage that you were unaware of?

A: If the omitted or misstated information would materially alter the property settlement then you can set aside the final decree and re-open the case for a period of five years from the date of the final decree.

Under the Colorado rules that govern in divorce cases, C.R.C.P. 16.2(e)(10) states that it is the duty of both parties to a divorce case to provide full disclosure of all material assets and liabilities. If the disclosure contains misstatements or omissions that materially affect the division of property then the Court maintains the jurisdiction to reopen the case for five years following the entry of the final decree.

This law went into effect for Domestic Relations Cases filed on or after January 1st, 2005 and for post decree motions filed on or after January 1st, 2005.

In the recent case of In re the Marriage of Roberts and Lipson, No. 07CA0903, The Colorado Court of Appeals found that the wife could re-open the case because her motion to set aside the separation agreement was filed after January 1st, 2005, even though the original case for decree of legal separation was initiated prior to January 1st, 2005. The motion to set aside the decree is a post decree motion and rule went into effect for post decree motions before she filed it. The date the underlying case was initiated was not relevant.

In this Case, the husband had stated that his interest in a limited liability corporation was worth $663,000. This LLC owned a 5.41% interest in certain stock. The Wife alleged in her motion to set aside that the Husband's financial disclosures omitted to disclose that his ownership interest in the stock had a minimum value of $20 million, and that he was aware of the minimum value at the time.

The Court of Appeals held that the Wife had a right to re-open the case because her motion to set aside was brought after January 1st, 2005 and the Husband's omission, if proved, would materially affect the property distribution in the Case.

Information for this entry was gathered from 37 Colorado Lawyer, No. 10, pg124, Oct. 2008

Mostly, the tenant that has been used in Colorado Courts over the years has been: Never involve the children in divorce issues.

In June of 2008 a Colorado Family Law Survey was conducted that included responses from 156 lawyers, 41 mental health professionals, 17 Judges and 16 Magistrates. The survey asked the following questions:

• How often are children's ideas and opinions considered in the parents' divorce?
• How often do parents and children jointly define goals for their post-divorce family?
• How often are children interviewed by judges and magistrates?
• Do children participate in mediation?
• Are children ever interviewed by the mediator so their suggestions could be considered int he design of a parenting plan

Here are some of the findings:

• The choices being that children's opinions are considered occasionally, somewhat frequently or frequently in their parents' divorce: 54 % of Attorneys/Health Professionals and 61% of Judges/Magistrates chose occasionally.
• Judicial interviews with children are rarely requested by lawyers or mental health professionals and 83% of Judges/Magistrates reporting said children occasionally attempt to meet with them but 56% stated they never or rarely request an interview with children.
• 70% of Judges/Magistrates responding stated that they never or rarely suggest that a child be interviewed by a mediator or child specialist who can, with the child's consent, bring the child's ideas and suggestions to a meeting with the parents.

You can see from the survey that children are rarely involved in divorce decisions that pertain to them in Colorado. Comments from Judges showed a wide range of opinion as to the value of a judicial interview with children when making parenting decisions. Here are four comments that show the range:

1. I am always concerned that, if I interview the children and then rule on the case, they will believe that they either influenced my decision or that they failed to influence my decision. This places too much responsibility on the child.
2. I have allowed children who are teenagers, sometimes younger, to speak to me when they have attempted to make it known they want to speak to the judge. I think they appreciate that they have been heard. This does not occur when there is a CFI (Child and Family Investigator) or Evaluator (Psyc Evaluation) assigned to the case.
3. I am leery about interviewing children for several reasons. I am concerned that I do not have the training to discern weather...I am hearing their true opinions or concerns instead of what the parent who is in favor at the moment as told them to say. I don't feel that I have the necessary set of skills to interview children to obtain the information I need without causing them further emotional damage, for example, putting them in the position of taking sides between two people they love. I also have concerns over the confidentiality of the disclosures they make and I ordinarily won't interview the children unless the parents and their counsel agree that the results will not be disclosed and no one will attempt to access the transcript of the interview.
4. The Court is criticized for interviewing the children because of the availability of CFIs, mediators ect...In past times I always thought that I was doing a good job of HEARING the children. Most of the times that I interviewed children, I felt that I was the only person who heard their desires or concerns.
   

There were a number of respondents, attorneys, mental health professionals and judges that acknowledged a need for finding ways to allow children's voices to be heard. They felt that children's thoughts, needs and concerns were critical pieces of information that are not getting to the parents, attorneys and the Courts.

The question is still up for discussion and child inclusive models may be available depending on who's court you are in. Check with your attorney on what might be available in your case. Ask about the following possibilities: Family mediation, Mediator interviews with children, Child specialist interviews with children, judicial interviews with children or therapeutic intervention with a therapist who specializes in working with children and family issues. There are also cases where a Child and Family Investigator is called for.

The source of the information in this entry is: Child-Inclusive Divorce: 2008 Colorado Family Law Survey, 37 Colorado Lawyer, No. 10, pg 77-82, Oct. 2008. referencing "The Colorado Family Law Survey", May-June 2008 by Joan H. McWilliams and Donna Kearney

In Colorado, a stepparent (someone married to a biological parent) can adopt a child if it can be proved that the other biological parent has abandoned the child for the previous 12 consecutive months. CRS 19-5-203(1)(d)(II).

In the recent Colorado Appeals case No. 07CA2169, In the Matter of the Petition of J.A.V., and Concerning N.K.B. The Colorado Court of Appeals states that Abandonment requires leaving a child willfully and without intent to return. In this case the biological father was under a protection order that prohibited any meaningful contact with the child, despite the fact that he had filed a petition for allocation of parental responsibilities and motioned the court to modify parenting time. These actions all took place in the 12 consecutive months prior to the filing of the stepparent adoption proceeding.

The district court found that the father "took no actions to pursue (his) relationship or have access to his daughter" and allowed the stepparent adoption to go through.

The Appeals Court found that by ignoring the biological father's efforts to obtain parenting time with his child through the court system, the district court erred by not properly applying the definition of abandonment regardless of whether the father might have done more to enforce his rights. The Appeals Court reversed the order terminating the biological father's parental rights and the case was remanded to the district court to proceed with the parental responsibilities case brought by the biological father.

Here at Matthews & Matthews we are committed to keeping you apprised of new developments in Colorado family law. We will update this blog with relevant information to anyone dealing with a family law issue.

If you would like to contact us directly with a question please call 303-329-3802 or email us through our website at www.matthewslaw.com.