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What is Family Law?

Because attorneys practice so many types of law, it can be confusing to know which type of lawyer you need. Many people think that Family Law attorneys like myself only assist clients with divorce, but that is a myth. The truth is that divorces are far from the only thing I do.

Family Law includes several types of cases, such as:

  • prenuptial agreements (also called prenups)
  • postnuptial agreements (also called postnups)
  • cohabitation agreements
  • legal separations
  • annulments
  • mediation
  • adoptions including step parent adoptions
  • parenting time
  • maintenance (also called alimony or spousal support)
  • division of property
  • child support
  • civil unions
  • allocation of parental responsibilities
  • dependency and neglect proceedings
  • contempt
  • protection orders
  • post-decree issues
  • enforcement of court orders
  • relocations
  • grandparent proceedings
  • guardianships

Basically, any type of legal issue a family may have is “Family Law,” just what it sounds like in the name. The above are all Family Law cases I handle. If you or someone you know is in need of Family Law representation in the Greater Denver area, please have them contact me.

The Maintenance Myth

 

With a new maintenance statute going into effect in January 2014, the topic has received attention in the Colorado press.

Maintenance refers to a form of spousal support commonly known as alimony.  In a nutshell, it is paid by the higher breadwinner to the lower.   A common rule of thumb, roughly accurate based on statute, is that you take 40% of the higher monthly salary minus 50% of the lower salary and that is the payment for about 1/3 to 1/2 the duration of the marriage.  Structured properly, maintenance can give two parties, and any children they may share, a similar financial quality of life to that operating during their marriage.

Just as the promise of “til death do us part” does not always work out in marriage, the promise of maintenance is not a sure thing.  Unfortunately, if the parties hit any of the common snags, the result for the recipient is a phrase I coined, “every penny you get is worth two cents of grief.”  Often the cost of enforcing a maintenance agreement exceeds the value of the missed payments.  This makes maintenance a dangerous promise for those who planned their budgets around the promise of payment. Circumstances for the paying party can be similarly harsh — more than one party has found himself or herself facing a contempt proceeding, and even jail, due to unpaid maintenance.  With interest accruing at 8% for each missed payment, the potential penalties are staggering.

The following are some common maintenance myths:

1.  MYTH:  Once awarded, maintenance is the same as money in the bank.  TRUTH:  Sadly, maintenance awarded is not the same as maintenance paid.  Many times a party falls into hard times or simply chooses not to pay.  This is not the court’s problem — to go out on its own and enforce unpaid maintenance.  The recipient must enforce his or her right to payment.  This may require hiring an attorney.

2.  MYTH:  A court can order or modify “non-modifiable” or “contractual” maintenance.  TRUTH:  Contractual maintenance is only reached by stipulation of the parties.   You cannot go to court ask for contractual maintenance that can never be modified.  Absent extreme and limited circumstances or AN AGREEMENT OF THE PARTIES, the court always retains the right to modify maintenance.  However, once a party permanently waives maintenance or both parties PROPERLY agree to contractual maintenance by an agreement removing jurisdiction to modify, the court loses its jurisdiction to modify.  In almost all cases, this means that amount is written in stone forever.  (Now, the ability to enforce the agreement is another story.  See Myth 1 above.)

3. MYTH:  Maintenance is the preferred and best way to settle unequal earning between the parties.  TRUTH:  A little known provision of Colorado law instructs that a court should try to settle unequal financial matters by a division of property FIRST and then go to maintenance.  In other words, it is preferred that the better earner a larger share of marital property to the lower earner instead of paying monthly.   Many parties agree this is better.  As months go on and on, paying maintenance is less and less appealing to the paying party.  A division of property is a one-time act and allows for investment and growth of the funds.  It enables the parties to lead separate lives.  On the other hand, there are bankruptcy and other risks that must be considered.

4. MYTH:  The new statute makes maintenance mandatory.  TRUTH:  The new statute is not even a presumption that maintenance must be awarded.  The statute simply sets forth the general formula and factors a court must consider on the record in deciding whether to award maintenance and how much to award.  Family courts retain discretion to order as much or as little maintenance as they choose as long as their decision is reasonably supported by the record and not an abuse of discretion.

5. MYTH:  Real men don’t get maintenance.  TRUTH:  Many men seek and are awarded maintenance.  Maintenance is based on respective earnings and earning power.  If the woman is the higher earner, she is the party who may end up paying.   Under the new formula, the court must make a ruling on maintenance regardless of whether the higher breadwinner is a man or a woman.

6. MYTH:  Once maintenance is paid to you, you never have to pay it back.  TRUTH:  Once a party files a motion to modify maintenance, the court has the right to look at all payments made after the motion is filed and even to make the recipient pay back amounts paid.   This can even be the case when a party has gone to court and enforced unpaid maintenance or garnished wages while the motion to modify is pending.

7. MYTH:  I lost my job and am broke so I don’t have to pay maintenance.  TRUTH:  In order to be absolved of your obligation to pay maintenance, you must file a motion to modify the order requiring you to pay maintenance.  If you did not file a motion to modify, you are in default and may even be held in contempt.

8. MYTH: The best way to get back maintenance is to go to the courthouse file your own criminal contempt motion.  TRUTH:  A contempt motion is a very technical and complicated motion.  Moreover, there are options for both remedial and criminal contempt motions with subtle and important differences.  Both have the possible consequence of jail but for different reasons.   In both cases, the inability to pay may be a perfect defense.   Filing the wrong contempt motion, or filing a contempt motion rather than using other types of enforcement, can drastically increase your burden of proof and decrease your likelihood of winning.   A brief consult with an attorney should steer you in the right direction and guarantee you enforce the unpaid maintenance in the best and most successful way.

9. MYTH: Parties can easily handle the maintenance issue on their own by checking a box on the court’s JDF “separation agreement” form.  TRUTH:  Maintenance has tax and other consequences the parties may not even realize.  The paying party gets a tax deduction and the receiving party pays tax.  That being said, if not handled properly, the IRS may ignore a maintenance agreement despite an agreement of the parties.  Even the Colorado legislature was confused — putting maintenance options in their statute that are contrary to federal tax laws that recapture maintenance paid over too short a period.  In other cases, the parties may have opened the door to maintenance by writing words on a separation agreement without knowing what those words mean in a legal sense.  More than one client has been shocked to learn they waived maintenance or left the door open to maintenance by writing the wrong word or checking the wrong box.  I strongly urge parties to at least consult an attorney and tax accountant before agreeing to maintenance on their own.

10. MYTH: You cannot hire an attorney to help with maintenance issues without paying a huge retainer.  TRUTH:  With unbundled legal services, you can hire our firm to advise you on many aspects of maintenance in as little as an hour or even a half hour without paying a retainer or requiring us to enter a general appearance in your case.  I strongly urge you to at least call for a phone consult on maintenance issues before signing a separation agreement or seeking to enforce unpaid maintenance.   My work number is 303-674-4414, my email is beth@jandapc.com and my cell phone 303-808-4794 is answered by me 24/7.

 

 

Retainers & Unbundled Legal Services

 

You may have heard someone say, “my lawyer” or have used the term yourself.  More recently, people even say “lawyer up” when talking about hiring a lawyer for a case.

Traditionally, this means an attorney hired with a retainer and engagement agreement to handle your case from start to finish.  When an attorney is retained, that attorney is responsible for handling all communications with the court and the opposing party or counsel.  The lawyer is on record with the court and handles every court appearance, court document and court communication.  The lawyer e-files the pleadings with the court right through the computer without having to trek to the courthouse.  Once you retain an attorney, you can call “your lawyer” whenever you want, ask questions and give assignments.  You are the boss.

The “retainer” is the amount you pay up front.  Like a security deposit, the retainer stays with the attorney until the end of the case — when anything remaining is refunded.  The retainer is your money.  The laws about segregating a client’s retainer funds are very strict.  In Colorado, lawyers set up special COLTAF accounts to hold the retainer funds.   As a general rule, an attorney cannot move funds from the client’s COLTAF account to the lawyer’s operating account until the funds have been earned.  The attorney has an obligation to bill the client fairly — either with a “flat fee” (one time payment) or ongoing billing.  Most commonly in family law, the client gets a bill once a month.  The bill breaks down everything the lawyer did that month, the hourly fee and the total due.

Each month, the lawyer will ask the client to “replenish” the retainer.  This is such a lovely-sounding word which means pay your bill so the retainer is back up to its original amount.    For example, if you were Don Corleone, you might have Tom Hagen on a $5000 retainer.  At the end of the month, he sends you a bill saying he spent 10 hours at $200 per hour working on your IRS issue.  He earned $2000 which means there is … wait for it … $3000 left in the COLTAF account (because, of course, Mr. Hagen and Mr. Corleone are scrupulous about honest book keeping.)  Mr. Corleone needs to replenish the retainer back up to $5000 wich means he needs to pay another $2000 into the COLTAF account.

Sometimes a person has a very pressing and important family law issues on the table but doesn’t happen to have the standard $2500 to $5000 for a retainer.  Or a person may have one small legal issue and only needs to meet with the attorney once or twice to do something specific like reading a paper or going to court or mediation.  This person may be a great candidate for “unbundled legal services.”

With unbundled legal service, the attorney is not retained.  The attorney is not on record with the court.  The client can ask the attorney to do something, but both are the boss when it comes to whether the lawyer does it.  The lawyer can do the work or decline it.  The client can ask the lawyer to do something or can do it on his or her own.  Going to court, for example.  The client can go alone or can have the attorney go.  With unbundled legal services, there is no retainer or a small fee (less than $500) to cover ongoing costs.

It’s “unbundled” because the  individual legal tasks can be paid separately.

A client pays up front on an ongoing basis for the work.   If Don Corleone wants Consiglieri Tom Hagen to go to mediation with Virgil Sollozzofor two hours, he can pay the $200 per hour (ie. $400) up front.

One thing to remember with unbundled — a lawyer is not like Superman or Wonder Woman, able to fly into court and save the day on the spot.  Lawyers are mortal and our best work comes from preparation.  We need to read the documents.  We need to know the law.  We need to form a strategy.  All this takes planning.  So a court appearance or mediation is not just the time in court but also an hour or more to prepare.

One of the best uses of unbundled legal services is to review a document and make changes.  The client writes a draft and the attorney gives feedback.  NO ONE should get divorced without an attorney looking over the separation agreement and parenting plan to make sure they are fair.  This could take as little as an hour or less.  But it is critical because these documents are very technical and can last a lifetime.

I work on retainer and unbundled legal services.  Which form my representation takes is not that important to me.  The main thing for me is to tailor the work to the individual client, working with his or her strengths and weaknesses as a team.   If you are good at paperwork, I will suggest you save money by doing it all on your own.  If you procrastinate and hate paperwork, I may suggest our clerical staff takes over.  If you are a good writer, you may do your own first drafts.   If you are good in court, you may want to save money and go it alone.  Most people, however, hate going to court.  They get emotional and stressed and I don’t blame them.  It is a unique process requiring knowledge of the law and the ability to think quickly on your feet.  I certainly would not stroll into Vegas expecting to clean up on the poker tables without training, skill and experience.  Court is not Vegas, but it can feel that way to those who stroll in unprepared.  Even a half hour meeting with an attorney before court can set you on the right track.  Unbundled.

Please call me and let me know if this makes sense.  I am happy to talk to you about unbundled legal services.  They are truly a blessing to clients without money for a retainer.

Getting What You Need in a Settlement

 

Settlement is almost always the most efficient and satisfactory way to resolve a case.  That being said, the best way to prepare to settle is by preparing to try the case.  The same facts and legal analysis play roles in both processes.   The main difference is that trial is almost entirely adversarial.  Settlement negotiations (while also adversarial) leave room for creative and mutually-beneficial compromise.

I suggest taking the following 10 CONCRETE STEPS to make settlement both likely and advantageous.

1.  Keep as much as possible on the table.  Don’t settle piecemeal.  More moving pieces mean more possibility to create something that benefits everyone or, at least, something mutully acceptable to both parties.

2.  Think creatively.  Often BOTH parties may want something they didn’t think of initially.  Creativity helps everyone and this helps you get the results you need.

3.  Endeavor toward a professional working relationship with the other party.  If petty fighting and revenge tactics helped my clients get what they want and neeed, this blog would be teaching those tactics.  They don’t help; they hamper.

4. Prepare your sworn financial statements, supporting schedules, mandatory disclosures, and proposed separation agreement as quickly and accurately as possible.  If you have children, attend your parenting class and prepare a parenting plan as well.  You can’t get divorced in Colorado without this critical information.

5. Separate emotional decisions from economic decisions.  Be prepared to make sound economic decisions that are not based on sentimentality.  For example, decide whether to sell your home based on a cost benefit analysis and not whether the kids or you love the neighborhood or can’t imagine moving.  In this economy, this is one of the toughest lessons to learn.

6. Work cooperatively with your attorney.  You would not want to come out of anesthesia to tell your sugeon how to remove your appendix.  Same thing with attorneys:  we know what we are doing.  At some point, you are going to have to let go and trust us.  You pick the goals; we know the strategies to achieve them.

7. Respect the court, the mediator, the legal process, the attorneys and, hard as it may seem, the other party.  Rather than trying to dictate how these processes and people should function in your opinion, pay attention to how they actually do work.  Use this knowledge to negotiate the process.

8. Make a rational decision as to whether you want or need your attorney at the mediation.  You have options ranging from going it alone to having the attorney on standby on telephone to having the attorney at your side at the mediation.  Work with your attorney to assess your skillset and the risks at stake.  This is one area where you cannot afford to make the wrong choice.

9. Pay for a great mediator.  This is another situation where you cannot afford to cut corners.  A poor mediator is a waste of money because they won’t be able to close the deal.  Your attorney should be able to help you choose a mediator who is the right fit to get you an advantageous settlement.

10. Be prepared to compromise if necessary to settle.  Know your goals but also know your bottom line.  With parenting issues, you will have chances to see thing play out and revisit.  With economic decisions, this is not a situation of making you both “happy” but rather making a reasonable compromise.  At some point, fighting for “knives, spoons and forks” is not worth your time or money.  Unless it is a critical “bottom line” issue, you need to be prepared to let it go.

The Pro Se Litigant

 

My client and I wait for a woman to clear her bundle of papers from the thick wooden Petitioner’s table. The woman glances nervously at us and then at the gray-haired, black-robed judge, seated high at his mahogany bench. The woman’s hands shake and her eyes tear slightly as she sweeps her muddled heap of papers into her canvas bag.

In legal terms, she is “pro se” (pro – SAY) meaning a person who appears in court without an attorney to represent him or her.

The judge has just dismissed her case. The woman and judge appear equally frustrated. Despite her pleas, the judge accurately stated that he had no choice but to dismiss the case. The pro se woman’s handwritten pleadings were not filed on a timely basis and were riddled with errors requiring dismissal.

Most people would not consider wandering into a hospital emergency room to perform surgery on their own child without guidance.  In fact, most people seek qualified help to fix their furnaces and their cars.

And yet these same people flood our courts as pro se parties when it comes to family law cases. Unrepresented and uneducated on the nuances of the law, they argue cases and file pleadings on their own, allowing courts to decide the most critical issues in their lives:  how much time they will spend with their children, where their children will live and go to school, how their retirement accounts and debts will be divided, whether they must sell their home, whether they can keep their job or must quit to earn more money.

An increasing number of people are attempting to secure results without one of the most fundamental components of our legal system, the attorney.

To a degree, I don’t blame them. Attorneys seem expensive. There are plenty of attorney jokes letting us know what you think of us as a profession. I am aware that some attorneys are accused of “churning” up the ire in a divorce and thereby their own legal fees. But there ARE good attorneys who are ethical and fair. I have met plenty of them. I like to think I am one of them.

The biggest problems arise when failing to hire an attorney is more expensive than hiring one. The risks are simply too great – the court deserves to hear a case fully and accurately, your child deserves a full and fair development of the record, you deserve the benefit of astute advice and advocacy when it comes to your family and your livelihood.

I am an attorney and I am here to tell you there is a reason I research, attend trainings, get to know the judges and my co-attorneys, keep up on the latest state of the law.  There is a reason I spent three years in law school and many more practicing a profession suited to my skills as a writer, researcher, negotiator and public speaker.  Like doctors and nurses, electricians and accountants, attorneys are trained to help people. Judges frequently express the relief they feel when there is an attorney helping to usher the case through the process, as pro se parties often cannot do despite valiant efforts.

As my own oral argument commences, I forget about the pro se.  I do not notice her taking a seat in the courtroom, watching intently as I advocate hard on my own client’s behalf.

My client does well. The opposing attorney and I argue legal points for the judge, but also work together to settle many issues to the clients’, and their children’s, mutual benefit.

As I head out of the courtroom, the pro se woman stops me. “Would you please represent me?” she asks. “This is the second time my case has been been bounced out of court. I just want to get divorced.”

That’s a true story.  And it was not the first or last time I helped a party whose case was dismissed, or about to be dismissed.   Men, women, old, young, every type of litigant:  even sharp business professionals who know their way around a balance sheet and yet had their QDROs rejected by the court.

Almost all family law attorneys (including me) offer free initial consult visits.  With arrangements like unbundled legal services, mediation and collaborative work with a good attorney who treats you as a partner, you have more options than you think. And, perhaps, more at risk than you realize if you try to go it pro se.