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Taking Child Out of State While Married

Can my wife take my daughter out of the state without my permission while we are having marital issues?

Yes. Unless one of you has filed for a divorce or legal separation and absent any other court orders to the contrary, your wife can take your daughter out of state.

Expediting Divorce Against Jailed Spouse

Can a divorce process be made to go faster for completion if the husband is in jail for DV, DUI’s, and child abuse and neglect, burglary harassment..no assets to split, only one debt but two children? Multiple protection orders including two that are current for myself and my daughter. Is it possible to get he filling fee waived due to all the DV cases and one child abuse charge?

No. The divorce action will not go faster, it will probably go slower. Regardless that your husband is in jail, he still has the same statutory and Constitutional protections in a divorce and custody action as he had prior to his arrest. Since he is in jail, the process will be slower since he has a right to attend hearings, and that will require the issuance of a Writ to get the jail to transport him to the hearings. He will have to provide financial information and documentation which he doesn't have easy access to due to his incarceration. He can get the documentation, but that will take a lot of time and effort.

The filing fee in the divorce case cannot be waived due to your husband's criminal cases. However, if you are indigent, you might qualify for a waiver.

Division of Assets and Home Ownership

I have not lived with my husband in 12 yrs but have not gotten a divorce. During that 12 years I bought a home which he has never lived in or paid on. Would that still be a 50-50 split of equity. Also I have a pension from the city, if my spouse remarries can he still collect on it?

In Colorado, marital property subject to division includes all property acquired up through the date of dissolution of marriage. It is irrelevant that you and your husband have been separated for 12 years. This doesn't mean that everything gets split equally, but your husband has a claim to part of the equity in your house and your pension from the city.

The Court has to look at everything including all of your assets, debts, incomes, length of marriage, retirement accounts, and economic circumstances to determine what is fair. Colorado is an "equitable division" state, which means that the Court must do what is fair, which may not necessarily be equal.

Child Support When Baby Has a Different Last Name From Father

I’m unmarried and I’m pregnant. I want the baby to have my last name. Can I still get child support from the dad, even though the baby does not have his last name?

Yes, you can get child support. The obligation to pay child support is premised on paternity, not on whether the baby has the father's last name.

Relocation and Modification of Parenting Plans

I have fully joint custody of my 11 year old son with his mother. In our Parenting Plan we have a 50 mile clause stating neither can move more then 50 miles from the other without losing a portion or all of our custody. She is remarried and now looking to relocate from Colorado to California, stating her husband has medical issues requiring them to leave Colorado (environmental allergies). When this first came up she was in agreement that our son would stay with me for the school year and go with her for summer break. She is now stating that we “Will” let our son make the decision of which parent he spends the majority of the time with. I believe she is also trying to convince our son why he should choose to move there. What, if any are my options at this point in time?

Generally speaking, neither party can relocate the minor child out of state without the consent of the other party or a court order. Your son does NOT get to choose which parent he lives with. Your ex-wife will have to file a motion with the court requesting that she be allowed to relocate with your son. I assume the court will appoint a Child and Family Investigator to conduct an evaluation and make a recommendation. It is likely the court will also order you to mediation. If you cannot reach an agreement, the court will set the matter for a hearing.

Paternity Tests and Birth Certificates

I have had full parenting rights of my now seven year old daughter since she was 2. Her mother has not seen her since and is now in prison til 2016. She told me she wasn’t mine before I got custody but a paternity test was never done and the possibility does exist. I’m worried that when released from prison she will file for test. What are my rights as far as custody or adoption go if proven she is not my daughter. I am listed as the father on her birth certificate

Good question. If it turns out that you are not the biological father, you would still have rights under Colorado law to file for an allocation of parental responsibilities since you have been the psychological parent.

Child Support and Retirement Pension Plans

I was granted total custody of my 2 boys at their ages 12 & 8. They are now 22 (married) and 19 (in college that I am paying for myself) my ex wife was ordered to pay $200 a month from the beginning and never paid. Now I am going to retire and I am ordered to pay her $800 a month from my pension. I have taken her back to court and spent a lot of money doing so for teh child support but she still has never paid. Do I still owe her from my pension since she is in arrearage?

Unfortunately, she is still entitled to her share of your pension. You cannot simply offset what she owes you unless you have a court order allowing you to do so. However, your pension should have been divided pursuant to a QDRO, in which case, your x-wife would receive her share directly from the pension plan itself.

Child Support Wage Garnishment

My ex-wife is to pay child support in only the amount of $118.00 a month and is behind six months. I ask for her payments and she doesn’t have it. Should I garnish her wages as she doesn’t own any property or assets? This is real hard on our son at the age of 14 and me being a single parent with only one income.

Absolutely garnish her wages. You will need to do a wage assignment and serve it on your ex-wife's employer. You can either have the payment come directly to you or set up an account through the Family Support Registry ("FSR"). If you choose FSR, the payment will come to them, and they will send it to you. The advantage is that FSR keeps a payment record, so you will always know how much your ex-wife has paid. This makes it much easier to file for a judgment or contempt action if you need to do so.

The Importance of Prenuptial Agreements

Do I need a prenuptial agreement?

If you have substantial premarital assets, have children from a prior relationship, intend to receive a substantial inheritance, or make a large income, and don't want to have to share it all with your spouse if you divorce, you definitely need a prenuptial agreement.

Everything that you bring into a marriage is your separate property. However, if those assets appreciate during the marriage, your spouse is entitled to a share of that appreciation. Similarly, all gifts and inheritances received during a marriage are considered separate property. However the appreciation is considered marital and subject to division.

If you want to protect the inheritance rights of your children from a prior relationship, or want to limit the amount of maintenance or property your spouse receives in a divorce, you can limit your exposure by signing a prenuptial agreement.

Legal Separation vs. Divorce

What is the difference between a legal separation and a divorce.

Legal Separation and Divorce follow the exact same process, and resolve the same issues including custody, visitation, property division, maintenance and child support, but a decree of legal separation results in the partners still being married rather than divorced. Some reasons why people choose to remain legally separated rather than divorced include religious opposition to divorce, retention of health insurance coverage, and indecision as to whether or not they want to actually terminate the marriage but want to protect themselves in the meantime.

If you choose to file for legal separation, once a decree of legal separation is issued, you must wait 6 months prior to converting it to a decree of dissolution of marriage.

Men’s Rights During a Divorce

I am a man and getting divorced, what rights do I have?

Many men are clueless as to the rights and obligations that they have in a divorce. Many think that they will get taken to the cleaners like all of their friends, and simply have to accept the terms that the wife offers. This is a common misconception and simply is not true. Men have all of the rights that women have including the right to custody and visitation of their children, a fair distribution of assets, fair distribution of all debts, maintenance and child support.

The problem lies in the factual reality that most men are the primary breadwinners, and most women have been the primary caretakers of the children. Under the law, the spouse who is financially dependent and unable to independently take care of his or her financial needs, will have at least a claim to temporary maintenance. Debts are often split in proportion to the party's gross Incomes.

Similarly, because most women have been the primary caretakers of the children regardless of whether or not they have been stay at home mothers, in applying the best interest standard to custody issues, the children will most likely remain with the primary caretaker.

If the roles happen to be reversed, it is not uncommon for the man to remain the primary caretaker of the children and to seek maintenance from the wife. Each situation is different and is factually driven. In "traditional" families, the trend in divorce cases has been for the man to receive substantial parenting time and get joint decision making of the children. The trend has been away from granting the wife permanent maintenance unless there are unusual circumstances such as a marriage of long duration, an uneducated wife who is a low wage earner as contrasted with a high wage earning husband, or a party who is permanently physically or mentally disabled. and unable to support themselves.

Length of Alimony (Maintenance) Payments

Will I have to pay my wife maintenance (alimony) if we divorce, and for how long?

Maintenance, formerly called alimony is a minefield and is an area where nice guys can finish last. Maintenance is based on an ex-wife's needs vs. the ex husband's ability to pay. The law states that she has a right to be supported in the life style to which she had become accustomed.

Allocation of Parental Responsibility in a Divorce

If I get divorced, can she take my kids?

No. The woman will never be able to take the kids. The issue is parenting time, decision making, and with whom the children will primarily reside. Colorado is a very progressive state. The courts are recognizing that men play an extremely important role in their children's lives. Although more often than not, women are usually awarded the primary care of the children, men are gaining significant ground and are getting substantial amounts of parenting time (40-50% of time). Courts also have a preference for joint decision-making. This means that the parties together make major decisions concerning the health, education, and religious issues regarding the children.

Divorce and Division of Property

Can I afford to get divorced? Am I going to lose everything?

The answer depends on numerous factors. Colorado is an equitable division state. This means that not everything is automatically divided equally. The Courts will award each of you your separate property, which is property that you had prior to marriage, property that you inherited, or property that you received as a gift. The Courts must divide all marital property equitably. Marital property includes everything that you purchased as a married couple, regardless of how it is titled or who paid for it. It also includes any appreciation in property that you owned prior to the marriage, and property that you inherited or received as a gift. This will usually take the form of real estate, or investments such as stocks, bonds, certificates of deposits, money market accounts, IRAs, pension plans, insurance, and the like.

Unless you entered into a prenuptial or post-nuptial agreement protecting your property from being considered marital and subject to division in the event of a divorce, essentially everything is up for grabs. The court will consider equitable factors including length of the marriage, relative incomes of the parties, and how each person contributed to the marriage. The longer you have been married, the closer to a 50/50 split the court will make.

Courts usually consider a marriage of at least 10 years in duration to be a longterm marriage, and the 50/50 rule is likely to apply. Although it is unlikely that a person will lose everything in a divorce, they may lose things, which are very valuable to them, and it is not uncommon to see an award where the lesser wage-earning spouse receives more in property and less in debt than the higher wage-earning spouse. It is common for courts to obligate debt to each spouse in proportion to their gross earnings. So, if the husband earns for example, 70% of the combined gross income, he most likely will end up with 70% of the debt unless some of the debt was clearly for the wife's personal use.

Common Law Marriage Qualifications

If we live together, are we common law married?

Many people are under the misconception that if they live together for a certain period of time, they are common law married. That is definitely not the case in Colorado. The courts apply a subjective test and look at several factors to determine whether or not the couple "holds themselves out" as a married couple.

Some of the factors the Courts consider consist of the following:
1. Does the couple introduce themselves as husband and wife?
2. Does the woman use the man's last name?
3. Does the couple file joint income tax returns?
4. Does the couple have joint bank accounts?
5. Is the couple listed as married on health insurance policies?
6. Is the couple listed as married for car insurance purposes?
7. Do they name each other as spousal beneficiaries for life insurance
purposes?
8. Do their family, friends and co-workers consider them husband and wife?

Does Hostile Aggressive Parenting Effect Custody Arrangements?

Does the court recognize Parental Alienation, Malicious Mother’s Syndrome, or Hostile Aggressive Parenting when it comes to custody battles? My husband has had to put up with so much from his ex-wife at the expense of his children getting hurt.  She has displayed many signs of Hostile Aggressive parenting and we have no idea what his rights are. We have the children in counseling and are documenting everything, but does the court system even touch on this subject? We are very concerned for the children and can see that it has effected them negatively.  What are our options?

If the children are being emotionally or physically harmed while in the care of their mother, and the counselor will back you up, your husband needs to file either a motion to modify parenting time or an emergency motion to restrict parenting time, or both.

Parental Kidnapping and How to Respond

My wife asked me to drive her to Idaho for a 1 week vacation 3 weeks ago. I left her with the car and flew home because of work. Now three weeks later she refuses to come home. She has stopped taking my calls and according to her mother has gone into hiding. I am very concerned about my two small sons. The environment is not ideal out there. They were staying with her mother and her mothers boyfriend. Both of them are alcoholics and do not work. Since they (the mom) and her boyfriend have no jobs they were all living at an uncles house, and she has been bleeding my bank account purchasing such things as alcohol and beauty products. I feel my sons are not in the best situation and think since she is no longer at the uncles house and is “in hiding” that this is parental kidnapping. I want to get emergency custody and get this matter handled through the courts the right way. My wife is originally from Idaho and since she wants to move back and I don’t she has chosen this path.

You will need to file an action for divorce, legal separation, or allocation of parental responsibilities in the state of Colorado and file an emergency motion asking the Court to order that your Wife return the children to the state of Colorado. Once you obtain an Order, you will have to have her served in Idaho. Seems like your biggest problem may be locating her. She cannot be served unless you know where to find her.

Health Concern for Daughter Taken by Wife

I need help. I’m lost. my wife of a little over a year left the state with my 8 month old. She has a heart murmur and is missing important appointments by leaving what can I do to make my wife bring her back? I’m concerned for her well being.

Unfortunately, since your baby has been residing in another state for over 6 months, pursuant to the UCCJEA, jurisdiction now rests with that state as it is now the home state. You will need to contact a lawyer and file an action in that state.

Should I pay for a car that was given to me?

My mother gave me a car when I was married with my wife and it was in both of our names on the title. It said E. Hurd or A. Atha-Hurd. She moved in with another man that had a car and I did not have a car so I went to the dmv and got the title in my name and got the car key and went and got it. Should I have to pay her for the car that my mother gave me? I pay her $100.00 a month for the car when it was given to me.

If there is no court order requiring you to pay her, don’t worry about it.

Late Child Support Payments

Thank you for your wonderful website! My wife receives child support from her ex, which by court order is due on the 15th of each month. Since October of last year he has been consistently  late, sometimes not paying until the next month, and repeating the same again the following month  However, as in years past, he is always able to come up with all of the money in full by the last day of the year (he pays it to the Support Registry, so we don’t really know for sure what day he paid, but have assumed he made it under the wire) if it is a year he claims the 10 year old child on his taxes (He was awarded alternating years to claim her IF he is current on his child support). My question is, if he didn’t pay in full by the 15th of December per the court order, IS he actually current by legal definition by supposedly paying in full at the end of the year? Along that same line, if he is consistently late, is there any recourse?  He quit a full time job making 43k a year to go back to school and work only part time, and now has been fired from that job (because he was unwilling to work evenings and weekends) and is unemployed as far as we know (just student teaching supposedly for his teachers certificate, and therefore doesn’t have an employer to garnish against anymore). Quite frankly, this guy is the typical “guard house” lawyer, interpreting the divorce decree and subsequent revisions in whatever way suits him. He is always careful to read the decree and look for loopholes (there are many) and do whatever he wants.  We are constantly bombarded with new interpretations, and are tired of the battles.  Please help us?  Thank you again. from Colorado.

If the x-husband has paid all child support due and owing by December 31st he is current for that taxable year, and thus, able to take the deduction. Although he is consistently late, if he eventually pays up, I wouldn’t file a contempt, since it is costly and time consuming. If he is consistently late and that causes your wife hardship, it may be worth filing a contempt citation. If he is unemployed and doesn’t have wages to garnish, you can garnish his bank accounts or lien his house, if he has these assets.

Wage Garnishment From 2 Counties For Child Support

Can two seperate counties garnish my wages for child support at the same time

Good question. Answer is yes, up to a maximum amount depending on whether the garnishment is for current or past due child support.

What is Considered When Ordering Child Support?

Does the Court consider my living expenses and debts when ordering that I pay child support?

Unfortunately, no.

Child Support and Wage Garnishment

I am paying child support directly to my ex-wife, but now she wants to garnish my wages. Can I stop her?

Unfortunately, no. The statute allows for a party to garnish wages for the payment of child support whether or not you are delinquent in your payments.

Consequences of Not Paying Child Support

Will I be thrown in jail if I can’t afford to pay my child support?

If you make a good faith effort to pay something each month, it is unlikely that the Court would hold you in contempt and throw you in jail. However, even if you are unemployed, the statute requires that you pay at least $50 per month for child support.

Active Parent Seeking Child Support

I have my 2 children 100 hrs. a week, but only 4 overnights. My ex-wife is refusing to help with anything, including daycare expenses. What, if anything, can i do to change this?

Your ex-wife is required to contribute to day care expenses. This is usually added in to the child support calculation. If it is not already included, you can do a motion to modify child support to reflect your actual day care expenses.

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