Separate property is generally property acquired before the marriage or received during the marriage by gift or inheritance.  Unless the owner has titled the property jointly or made a gift of it to the spouse, separate property will not be subject to division.  However, see below.  Although the court may not divide separate property, in practicality it may be necessary to sell to satisfy the award of marital increased value.

        Marital property is generally that which is acquired during the course of the marriage except as above.  Any increase in value of separate property during the marriage is considered marital; i.e.: home owned before marriage worth $90,000 at marriage, now worth $150,000 yields $60,000 marital property and $90,000 separate property.  Marital property is subject to division in dissolution of marriage.  The above simple example assumed home purchase by cash with no debt.  Secured debt would be an equity factor at the time of acquisition, marriage and divorce.

         Separate debt is generally acquired before the marriage and not subject to award against the other spouse.  Reduction in separate debt can be allocated as marital property.  Debt incurred during the marriage is generally marital debt, even if incurred only by one spouse without the knowledge or consent of the other spouse, or if incurred without the other spouse's joint signature.

       The court will equitably divide marital property & marital debt.
Generally that is 50% each, however the court may divide otherwise if fairness and the facts of the case require it.  Equitable division does not necessarily mean equal division; either the husband or wife may be awarded more than 50% if the facts and circumstances make this equitable or fair.  Property, debt, child support and spousal maintenance weave together.

        If the parties are unable to agree on value or division of personal property, the court may order all personal property sold at auction.  Be reasonable - not greedy.

        Please refer to the Resources Links page of my primary website for assistance in placing values on your real property, personal property or motor vehicles.  Specific link designations are provided below.
                Real Property
                        Real Property Appraisers
                        Real Estate Brokers
                        Real Property - value, history, financing, insurance, rental housing
                Personal Property Appraisers
                Motor Vehicle
                        Motor Vehicle Appraisers
                        Motor Vehicle Value - (NADA Yellow Book & Kelly Blue Book) and history (Carfax)
                                On-line availability of yellow & blue books may alleviate need for appraisals
                                Parties tend to agree upon motor vehicle values with aid of the books

        Pensions, including military and PERA, are property subject to division if earned during the course of the marriage.  It is not necessary that a pension be vested or mature for the court to divide it.  Vesting is the right to take the pension if you left employment.  Mature is the right to receipt at present. If the marriage is over 10 years duration during creditable military service, the military will disburse the spouse's share direct to him or her if requested.  Numerous court rulings have interpreted the "10 Year Rule" which does not prohibit or deny the spouse's claim if the marriage was less than 10 years duration during creditable military service.  The "10 Year Rule" merely deals with whether the military will disburse a portion of the pension to the former service member and a portion to the former spouse, or whether all will be disbursed to the former service member and then he / she must disburse to the ex-spouse. 

        IMPORTANT NOTATION: For any loan you have taken or will take from family or friends, document the loan with a promissory note reflecting the loan date, initial principal amount, interest (if any), method of repayment (i.e.: installment or lump sum) and amortization (scheduled payment amounts and due dates.)  If you have borrowed items of personal property, make a writing reflecting the date or circumstances regarding return.  This documentation is admissible evidence if your spouse claims family or friends made a gift to you individually or jointly.  Lawyers see this dispute with some regularity - protect yourself now, even if after the initial loan date.  Clients may refer to the link to obtain a form Promissory Note.  Free Acrobat Reader Download

        The legal system hasn't achieved the fast food market level of efficiency and probably never will.  Probably never should.  Prospective clients want to know how long will it take to commence a divorce and how long the process will take.

        There are two primary focal points in divorces - finances and what to do with respect to the children.  The two most important documentary aspects of a divorce are the financial computations used to arrive at settlement or litigation theory (pre-trial statement & brief) or the separation agreement (terms to be incorporated into the final decree if court fight can be avoided).  Comprehensible and concise computations are required to understand family finances and to draft a realistic settlement or litigation proposal.  

        A lawyer can not offer advice regarding support or division of the marital estate until he or she has an understanding of the family's finances, and understanding of family dynamics is necessary before formulating a parenting plan.  That's common sense.  Financial disclosure rules require an in-depth look at the family's financial circumstances at the time of filing.  If children are involved, a parenting plan must also be submitted.  Put another way, at the time of filing you must inform the court of the family circumstances and your proposal for relief - at least on an interim basis until final orders hearing.

        I have fact sheets available on-line to aid in understanding of family finances and dynamics and case preparation.  I ask the client to provide realistic valuation numbers regarding income and expenses, assets and liabilities and to be thorough in describing family circumstances.  I ask that the client invest time locating, organizing, copying and providing relevant documents at the time I am retained.  Income is determined from paystubs, LES or projected income capability.   Kelly Blue Book or NADA Yellow Book will be utilized to set motor vehicle values or if one party wants to be difficult, appraisal can be ordered.  If the parties are not in agreement, real property can be valued by appraisal or market analysis.  Unless the parties' real property will be sold and proceeds divided or if buyout is planned, unless it was recently purchased, appraisal or market analysis is a very good idea.  Business interests can be valued by a CPA if complex or if the parties do not agree.  Pensions are ascertained from plan provider documentation.  IRA, TSA, 401K, etc. are ascertained from family financial documentation, as are bank balances determined from bank statements.  A value can be set for every asset, right down to household goods.  If you can't agree on valuation of personal property or household goods, appraisal can be ordered.  Debt is determined from recent billings.  Numbers will be obtained - mutual disclosure and valuation stipulation is easier on the pocket book than discovery fights and appraisals.

         You feel the need for speed - how fast?  From the time attorney receives completed intake sheets and financial documentation, the divorce can usually be prepared within 1 - 2 weeks.  I prefer to submit a separation agreement (settlement proposal) to the opposing party at or near the time of filing the petition or response if possible.  Settlement proposal is seldom accepted as first drafted, but changes shouldn't be significant if client has been realistic and has communicated with spouse or is aware of spouse's valuation estimates and goals.  Being aware of the spouse's position doesn't mean you agree; compromise or litigation will likely be required.  Initial financial scrutiny & settlement proposal method creates additional work for counsel and parties on the front end, but in this fashion we quickly determine whether settlement is a viable option or trial will be required.  If appraisals are not needed and if you and your spouse can be objective, figure about 3 - 4 weeks of hard work to achieve a final resolution, including transfer of real property ownership by quit claim deed or motor vehicles via powers of attorney.  More fees are incurred at the outset than if the case were commenced with a simple summons and petition, but if the case can settle it will ultimately reduce attorney's fees and costs in the final analysis.  It also reduces headaches, heartaches, anxiety and stress if the case can be concluded from the outset except awaiting the statutory 90 day cooling off period mandated by CRS 14-10-106.  If settled, decree can usually be taken in about 4 months from the time of filing and service of process.

        That's not "on-demand" or fast food mentality, but not a significant period if you and your spouse can be objective, realistic and reasonable.  In the interim, please don't plan a wedding to a new spouse, nor plan a buyout and refinance closing within a tight time frame.  If it's a court fight, plan to become quite patient.  

        Remember - the court's polestars will be the best interests of the children and fundamental fairness with respect to support, property and debt.  If you enter into court fights, final outcome will likely be somewhere in the same ballpark of reason we are seeking in the initial analysis.  Use good judgment when contemplating your initial "wish list" or revisions thereto.

Courtesy vs. Fighting and Negative Emotions

        1.   Do not fight with your spouse, physically or orally.  You will gain nothing, except to make your divorce much more difficult or incur criminal charges.

        2.  You must disconnect the buttons which have caused you emotional distress in the past.  No one knows better how to press your buttons than a spouse.  You have commenced or are contemplating a divorce - expect your spouse to play your buttons with more fervor than the "Phantom of the Opera."  Recognize your spouse is jabbing your all too familiar emotional sore spots due to his or her own negative emotions.  Do not give feedback; the jabs can be temporary if you don't feed the fight.  And... don't you become a concert pianist on the buttons.

        3.  You make the best decisions when you are rational and logical.  No one can exercise clear judgment when we are over emotional, over tired, ill (physical or emotional) or impaired by substance (Rx, illicit or alcohol).  Decisions you will face in your divorce and in normal communications with your spouse are some of the most important you may ever encounter with long term consequences.  Resolve your emotions in another forum; not in your litigation or dealings with your spouse.

        4.  You have business to conduct with your spouse; treat the divorce as such.  Establish your new relationship starting now.  Give your spouse the courtesy, dignity and respect you would give a stranger on the street.  Require the same be given you in return.

        5.  Guilt, I'm Not Whole and Public Perception.  You may experience guilt that the relationship didn't work out, and that you are not a whole person.  Find a way to recognize yourself as a whole person - others do.  A mainstream church pastor once expressed concern that his peers would view him with distain at an upcoming conference when they learned he was undergoing divorce - Hawthorne's scarlet letter.  I told him I believed their response would be: "Gee, I'm sorry to hear that, now what's for lunch?"  There may be a great deal of reality in that.  The pastor later reported that lunch was good.  Divorce is an opportunity to redefine your perception of yourself.

Children and Manipulation

        1.  Do not let children hear any derogatory or bad statements about your spouse, whether from you, family or friends.  Vent your emotions outside the presence of your children.  Your divorce will create a degree of trauma for them; do not increase that trauma or cause emotional distress to your children needlessly.  This office will not represent you if you manipulate or unfairly make the children pawns.

        2.  The below listed complaints are frequently heard by attorneys. In El Paso County, an order to parents was likely entered when you filed your case.  If your spouse is engaging in any of the following behaviors, refer to that Order.  You will likely be able to stop this manipulation by contempt of court (jail) proceedings.

a.  Children must choose between the two of you.

b.  Attempting to turn the children against you by discussing your shortcomings, i.e.: denigrating, demeaning or making derogatory statements about you or permitting family or friends to do so in the presence of the children.

c.  Failure to continue with scheduled activities or school work during parenting time - time being used as a vacation from responsibilities for the children.

d.  Children being involved in setting, negotiating or mediating parenting time.

e.  Children being questioned regarding your activities, new assets, expenditures or romances.

f.  Spouse or significant other using illicit drugs during child care times.

g.  Children being forced to refer to step-parent or girlfriend / boyfriend as "mom" or "dad."

h.  Children being taken to a counselor or therapist without first obtaining the agreement of the residential parent.

i.  Other parent secreting or not informing you of his / her current address and phone.

j.  Discussion of the divorce case or issues of the case with your children, whether parental responsibility, parenting time, child support or other financial issues.

k.  Children being shown documents related to the case.

l.  Children being brought to court.

m.  "No show" or "late show" at agreed times for parenting time exchange.

n.  Spouse arguing with you at exchange for parenting time.

o.  Step-parent or boyfriend / girlfriend being part of the transportation or child-care process during parenting time... significant other sticking nose into your business

p.  Lack of adequate clothing for parenting time or being returned in poor condition.

q.  Driving with the children under the influence of alcohol, drugs or medication.

r.  Failure to use legally mandated child restraints in motor vehicles.

        3.   Children, even very young, may likely attempt to manipulate the parents.  Separation is a particularly fruitful time given the guilt most parents are experiencing... a child's radar senses this.  Agree with your spouse that if either hears a disturbing report, you will call the other to inquire.  Agree neither will fly off the handle due to such an inquiry - a degree of unity remains necessary. Keep rules & discipline consistent. Understand children may attempt to manipulate, distort or extort. "No-way... not my children"... right.  Children need boundaries.

Children - Attorney Appointments

        I ask that children not be brought to the office unless requested by the attorney.  Family law matters are sensitive and not appropriate for children; they may understand more than we expect.  Also, many children have short attention spans.  Matters to be discussed will be of importance to you; the distraction of caring for a child will likely decrease the productivity of our time together.  Please make arrangements for daycare.  If care is not possible, I work from my home and toys are available.  It's simply not a plan to include children in divorce legal matters.

Cohabitation with Spouse

        Legally, you may cohabitate (live with) your spouse all during the divorce, including through the date final orders are entered.  In practicality, it does not work. 

        1.  Living together will increase the emotional tension between you and your spouse.         

        2.  Domestic violence criminal charges may be brought on allegation alone with no supporting evidence.  Hello gray-bar hotel, no room service 'eh?  Refer to the any of the below links for additional information regarding potential domestic violence criminal charges or restraining orders.  Refer to the below links for additional information.
            a.   Domestic Violence Information - information pertaining to defense of domestic violence charges
            b.   Domestic Violence Criminal Charges - frequently charged domestic violence crimes
            c.   Domestic Violence Sentencing Summary
            d.   Civil Domestic Abuse Restraining Orders
            e.  Have I represented level headed clients who continued living under the same roof with the spouse against my advice to save money?  yes.  Have some consequently faced predictable but devastating domestic violence criminal charges and / or domestic abuse civil restraining order litigation?  yes.  Hopefully this rings home - don't attempt cohabitation.
 
        3.  One of you must move out, or plan on disagreements.  To that end, the person who moves out will need at least first month's rent plus security deposit, maybe last month's rent, staple groceries, adequate furniture / household goods and transportation.  Plan on the expense, regardless of who actually moves.  Financial arrangements for multiple residences are nominal in relation to criminal defense or restraining order defense, not to mention long term consequences of the paper trail left by such an allegation.  Throwing out your spouse with no money and nowhere to go is not wonderful, nor will it favorably impress a judge.  Use common sense - don't make or tolerate that demand or threat.

Negotiations

        1.  Conduct all negotiations with your spouse in a park or restaurant which is a public setting but offers a degree of privacy.  Never discuss an emotional issue in the privacy of your home or a totally secluded area.  Argument, possible assault or injury, criminal charges and injunction will be avoided.

        2.  If you and your spouse can not reach agreements in any particular discussion, recognize that you will not be able to agree and discuss the matter in 2 or 3 days when emotions cool down.  Do not continue to press a matter when you know you can't agree.  A court hearing may be necessary; courts decide fairly.  Use court hearings for legitimate disagreement matters and avoid court battles over issues emblazoned by emotion.

Relationships and Sexual Intercourse

        Relationships and sexual conduct may not be admitted in court as evidence except under limited circumstances as pertains to court dispute regarding children.  However, if your spouse learns of it or you bring a member of the opposite sex near the spouse or children, negative emotions will result (major understatement).  That will likely translate to needless court fights and higher attorney fees for each of you even if there are no kids.  Be discrete, and do not live with a member of the opposite sex while your case is pending

        1.  Children experience some degree of trauma due to separation.  Remember, they did not participate in the decision to split the family unit. Do not expose children to friends of the opposite sex until the relationship is stable, and then introduce them gradually with a picnic, movie or some easy outing.

        2.  Naturally, children should not be exposed to sex.  Nor should they be left with a babysitter for frequent or extended periods, nor late night while you party or enjoy recreational activities.  These facts are admissible; use common sense.

        3.  Children, particularly young, will report your spouse's activities to you and will report yours to your spouse - pipeline.  Use common sense when establishing new relationships.

        4.  Mental health professionals will likely advise you that it takes approximately two years post decree to conclude the grief or healing process; I suspect closer to 9 months - a year & a half.  Books are available from the public library, just as counseling and divorce recovery workshops are available.  It doesn't lessen your loss, but knowledge can aid understanding of the feelings you are undergoing.  I call it: "I'm crazier than a loon, but if I wasn't crazy, I really would be crazy."  A mental health professional referred to that cycle as "feeling and acting normally in an abnormal circumstance."  I have no expertise in the area; they do.  They use nicer phrases.  Temptation will be strong and will abound - be careful about entering into a significant relationship before you have concluded the grief process from this loss.

Property Issues

        1.  Close joint accounts.
                a.  Close all joint liability and charge accounts immediately. Notify creditors by certified mail that you will no longer be responsible for future debt incurred by your spouse.  This includes accounts in an individual name and upon which the spouse has signed as co-maker or has charge privileges.  Send creditors one-half of the charge card of the spouse who will no longer have charge privileges, or close the account entirely if need be.  This includes utilities and checking accounts as your spouse may write bad checks.  Closing joint liabilities is simply good business and eliminates possible disagreement later.  It may be uncomfortable to discuss this with your spouse immediately.  You may believe excessive charging to be out of character for your spouse.  You may fear the finality this seems to bring.  Do it anyway & do it now - attorneys see this problem frequently.  Close all joint accounts immediately. ...twice written intentionally.
                b.  Close all joint savings accounts, and divide the proceeds fairly.  If you anticipate problems, transfer the proceeds to a savings account in your name only, and hold (not spend) the proceeds until final disposition can be made.  It is easier to give the money to your spouse than to ask for it back.  This office recommends immediately after you have withdrawn the money, you convert the new savings account to an account where withdrawal is possible only upon the signature of both you and your spouse; check with your bank for availability.  Protect your savings.

        2.  Personal property division. If personal property has not been divided, do so immediately. 
                When you make division of personal property, divide as much as possible, and make one move.  Disagreements are caused when one party continually contacts the other requesting minor items of personal property.  Identify those items on which you disagree; counsel will negotiate or a court hearing may be necessary.  The goal is to identify & minimize those items which are contested. Don't sweat the small stuff; be flexible without giving up important matters.  If you take petty personal property issues to contested final orders hearing, a judge could easily order all property sold at public auction and division of proceeds.  Greed could backfire badly.

        3.  Estate planning. 
                Review wills, trusts or life insurance policies.  Your circumstances will be changing; you will need to amend beneficiaries or your entire estate plan.  You may also wish to review your needs for powers of attorney, child guardianship and conservatorship, a medical or surgical treatment declaration (life support) or anatomical gift declaration.  I do not practice probate or estate planning; contact your estate planning attorney.

Award of Attorney's Fees and Costs of Litigation

        In divorce cases, the relevant statute is CRS 14-10-119.  The court may order payment toward attorney's fees as well as expert witness fees, guardian ad litem or special advocate, costs of genetic testing or other litigation costs.  Attorney's fees and litigation costs may be awarded for periods prior to commencement of the proceedings and subsequent to judgment.  

        Award or denial of attorney's fees and costs of litigation is in the nature of support.  Award is not to be used as a punitive action.  The Court must consider award or denial in light of the income and property of the parties in relation to one another, and must make findings as to the amount and reasonableness thereof.  Under some circumstances, a court may consider the actions of one party which directly increase the costs of litigation.

GENERAL CONSIDERATIONS - INITIAL DIVORCE

GENERAL CONSIDERATIONS - POST DECREE

Finally, cheer up. Life gets better. 
Thank you for considering my services; I appreciate your inquiry.