Q&A with a Family Law Attorney

October 25, 2016 | Bill Henry

Can’t I just go to mediation and have the mediator decide what’s fair?

For a divorce it is a more complicated question than it initially may appear. The mediator is a neutral; they do not represent either party’s best interest. A mediator’s job is to act as a neutral and see if there is any common ground between the parties, but they will not determine what is “fair”.  So, if the parties can’t reach an agreement then the court will decide parenting them, support payments, and the division of assets during a contested hearing

The court will order you to go to mediation subject to a few minor exceptions such as the in case of domestic violence, even if you have an attorney.  The court will also require you to attend mediation prior to going to any kind of contested hearing on any disputed issues in your case.

When you go to mediation with an attorney, the parties are generally in two separate rooms so that the client can talk to their attorney and tell the mediator their side of the story. The mediator generally goes back and forth trying to find common ground on their positions and what is fair and try to come up with an agreement that benefits both parties in some way.

How does the court award alimony?

During a divorce, one of the first steps that you must do within the first 42 days is exchange mandatory financial disclosures. The court orders both parties to provide sworn financial statements, which is like a worksheet that states your income, the taxes that you pay, your expenses, all your assets and debts. You will also have to exchange supporting documentation with the opposing party which is called your mandatory financial disclosures. Disclosures include tax returns, pay stubs, retirement information, and all other relevant documentation for your financial life.

Both parties essentially put everything on the table. If one party is not currently working, attorneys frequently argue that the non-working spouse should work full time and the court should consider the non-working spouse’s earning potential. The court uses statutory guidelines with the financial disclosures to determine maintenance (alimony), but it is just a guideline for the court.  The court will also consider any mitigating circumstances that will warrant a spouse getting a lesser or greater amount of maintenance (alimony) or over a shorter or longer duration. It is the job of each party to convince the judge to adopt his or her position by using testimony, evidence, and Colorado case law.

How can I afford to move out?

A lot of folks are faced with the question of how to move out or to get support at the beginning of a case when there are no court orders for support. Especially if they’ve been a stay at home mom or dad for many years, have a limited ability to go out and earn an income right away, or limited funds aside from the marital funds moving out can be very difficult.

In that case, we highly suggest filing a motion for temporary orders and seeking some temporary family support from the other party if the other party earns more. The court will generally order the parties to go to mediation first to see if an interim agreement can be reached on spousal support or child support so that the non-earning party can afford move out of the home.  After mediation, if the parties can’t come to an agreement, the court will hold the temporary orders hearing.

My spouse has been abusive, I am afraid to get a divorce but I know I need to do it for my children. What should I do?

It is important to talk to an attorney right away if you are being physically or mentally abused. There are a lot of avenues for relief available to you.

First, once you file your petition for dissolution of marriage there is an automatic temporary injunction in place once the other party is served.  The court order prohibits the abusive party from harassing you, disturbing the peace, or even destroying any property that you may have together or as part as retribution.

Additional avenues for relief that are available to parties, particularly victims of domestic violence include a protection order. We recommend getting a protection order as part of the dissolution of marriage case if abuse is an issue. If you do fear for your well being or your safety then the protection order can include the children if necessary.

A final avenue for relief is restriction of parenting time. You can a request temporary orders hearing where the judge will enter temporary orders as to how often this other parent can see the children particularly if that parent is unsafe.

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