What will be covered when I come in for an initial conference?
- March 31st, 2014
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I usually let the person or potential client coming in set the agenda. However, there will be certain basic things I will want to cover, in both a procedural and substantive sense; so that you are aware of these things before you leave the office. I try to convey to you the information in non-technical, or non legal terms; although I may use some legal terms peculiar to a divorce action, so that you can start to learn the terminology. This will be helpful to you throughout the proceeding.
For example, we may discuss that marital property is all property acquired during the marriage, except by gift and inheritance. Any property acquired prior the marriage is separate property, except that any increase in the value of separate property during the marriage is marital property.
We may also discuss that in Colorado, we are not a “Community Property” state. We do not have a 50/50 split of marital assets. We have an “equitable” or “fair” split, which is whatever the Judge says it is, on any given day. This split could be 50/50 or 60/40, or even 70/30.
Part of what the Court will look at in dividing marital assets is the contribution of the individual parties to the accumulation of the assets during the time of the marriage.
I will also want to cover with you information about maintenance, if I hear that you either may have a maintenance claim, or you may be defending a maintenance claim. Colorado has a relatively new maintenance statute which, while it is formulaic, is not binding on the Court. It is a series of calculations, similar to what is done in figuring the child support amount; except that it is not mandatory that the Court follow the maintenance calculation. It is simply advisory.
There are only two issues in divorce cases, money and children. Some cases have both issues; some cases have only one of the issues. In our first meeting, I will want to cover basic concepts with you of what is now called the “Allocation of Parental Responsibilities,” in the event you have an issue with parenting time and decision-making. We do not have “custody” anymore in Colorado. Some years ago, the statute was changed to speak in terms of allocation of parental responsibilities, to get away from the concept of “custody,” i.e. possession by the parent of the child or children.
Allocation of Parental Responsibilities is comprised of two things: parenting time (we used to call this “visitation”) and decision-making; that is the ability for the parties to either make joint or sole decisions for the children with respect to major things : such as health, education and religion. With respect to the parenting time, this has to do with how much time each parent will have with the child or children, measured in overnight visits that the child or children spends with the parent.
This discussion can then segue into a brief discussion about child support, and how it is calculated. I sometimes run sample child support worksheets in my office while you are here; or sample maintenance worksheets, for that matter, so that you can obtain an idea what you may be paying or receiving in the nature of child support and or maintenance.
In a procedural sense, I will want you to understand before you leave the office that you must be a Colorado resident for 91 days before you file the Petition for Dissolution of Marriage. The earliest you can receive your Decree of Dissolution of Marriage is 91 days after you have either served the Respondent or the Respondent has signed the Waiver and Acceptance of Service. If all the issues between the parties are settled, you may be able to take your decree by mail and not go to court for the final hearing after the expiration of the 91 day period.
To start the divorce proceeding, the other side (and this is an adversarial proceeding), called the “Respondent,” can be served with the divorce papers (Case Information Sheet, Petition for Dissolution of Marriage, Summons, Waiver and Acceptance of Service and Return of Service); or I can send the Respondent a letter, enclosing the Waiver and Acceptance of Service, and asking that he or she sign the Waiver in front of a Notary Public and return it to me. With the signing of the Wavier or with serving the Respondent, the action is started. This gives the Court personal jurisdiction over the other party.
Within 42 days after the service of the divorce papers on the other side, the Rule 16.2 financial disclosures, as stated above, must be served on the other party and e-filed with the court. The Initial Status Conference (“ISC”) must be held within 42 days of filing the Petition for Dissolution of Marriage with the court. In different judicial districts, this informal conference (it is not a hearing) can be held before what is called a Family Court Facilitator, a district court magistrate, or a district court judge. The purpose of this initial conference is to tell the family court facilitator, magistrate or judge what the issues are in the case, and what initial orders may be needed from the court; in an immediate sense.
Monique Mountain, the long time legal assistant for this office, as stated above, will help you put together this financial information. She will draft, (under my supervision) your Sworn Financial Statement, and help you assemble the hardcopies of the account statements, earnings statements and so on; that must accompany your Sworn Financial Statement. (This information is burdensome and tedious to put together, but with Monique’s help and guidance, it becomes a less onerous task).
For example, at the Initial Status Conference, it may be discussed; does the marital residence (the home the parties live in) need an appraisal? If so, have the parties agreed on who will be the appraiser, and how the cost of the appraisal will be split between the parties? If there is a retirement account of one of the parties, such as a PERA Defined Benefit Plan, does it need to be reduced to present value by an actuarial expert? What other experts may be needed? Is maintenance in issue? If there is a dispute over the allocation of parental responsibilities, is a Child and Family Investigator (“CFI”) needed? (A Child and Family Investigator is a mental health professional or a Ph.D. in psychology, or a lawyer with training to be a CFI). The CFI will investigate the circumstances of both parties in relation to issues of parenting time and decision-making, and then make recommendations to the Court as to what is in the best interests of the child. Does either of the parties want a Temporary Orders Hearing?
We may also talk about the progression of a divorce case, that is starts out by filing the petition and serving the other party, then the Initial Status Conference is held; the a Temporary Orders Hearing may be held, then mediation, or to call it by another name, “Alternate Dispute Resolution, or “ADR,” and then the final hearing, which is called Permanent Orders and Decree.
I am a big believer in Alternative Dispute Resolution, or mediation. The reason for this is the first choice in all these cases is to try for the parties to try to settle the case. This can save time, attorney’s fees and costs and aggravation. Also, a mediated settlement allows the parties to determine the outcome of their case, rather than a judge.