What to Expect After Hiring an Attorney

What you should expect in an attorney who’s representing you that is going to be there when you need them the most? This is absolutely critical, especially in those cases where children are involved, a lawyer who represents you in any of these matters and has the kind of experience that the court certainly is going to recognize is an overriding factor. This is not a situation where you want to skimp on paying for an attorney. This is a situation where you want to get the best lawyer that you can. Most people who come to see me tell me that they’ve never had any experience with the legal system and that they’re scared to death of what’s going to happen and what the outcome is going to be.

There’s a lot of uncertainties. What’s going to happen with child support? What’s going to happen with visitation? What’s going to happen with the holidays? And people are scared. So when I’m representing somebody, I want to be able to sit down with them, look at their financial situation with their sworn financial statements and their other financial documents and start to map out a legal strategy.

A legal strategy is one where the attorney and client discuss how to get from point A to point Z. And point Z may be many months away. In doing this, you have to keep in mind that your communication with the lawyer and your ability to convey your thoughts and what your goals are are critical to an attorney’s ability to go into court and to fight for you. Because ultimately these kinds of decisions are going to be made by a judge and they’re going to have long range implications.

Contempt Motion vs Motion to Enforce

I want to talk to you a little bit about your remedies when the other parent most likely in a custody case, child custody case is not complying with the parenting orders from the court. You really have a couple different remedies that you can pursue in court, and that would be in the filing of a verified motion for contempt, or a motion to enforce parenting orders.

A contempt proceeding is governed by a different set of laws than a motion to enforce parenting orders. In a contempt action, the party who’s filed the contempt is held to a higher standard of a proof beyond a reasonable doubt. In a contempt action, the court can issue a punishment to the offending parent or the parent who’s in violation by saying, “I’m gonna order you to, uh, remedy the situation. I’m gonna order you, uh, to fix the problem”, or the court can even send that parent to jail which is called punitive contempt.

There is also another avenue and that is a motion to enforce parenting orders. In that, the court has many more remedies and can issue a relief to the party that’s been the subject of a violation of a custody order. The example that comes to mind is when a parent has orders from the court to pick up the children for Christmas holiday, the orders may say that that parent can pick up the children at noon on Christmas Day, and that parent comes to the door and finds that the other parent and the children are not home.

There’ll be no Christmas for that parent that year because the other parent has either intentionally, or willfully or neglectfully taken off with the children depriving the other parent and the children have parenting time with the other parent. In that situation, if a motion is filed and that parent has indeed violated a parenting order, one of the remedies is for the court to issue attorney’s fees for the parent that’s violated the court order. This is another reason why it’s always important to consult with an attorney that is aware of the options and what the law says so that you can enforce your parenting rights at all times.

Child Support Calculations

What happens when a stay-at-home mom does not have any income? I’m going to discuss with you a little bit about what happens when a stay-at-home parent does not have income and you’re involved in a custody case involving a request for child support, and how will the court deal with that situation

One of the things that our law sets out in a child support case is that if one of the parents is a stay-at-home parent and has a child in their primary care, or children in their primary care, can the court impute income to that parent for purposes of calculating child support? In Colorado, our law says that when a primary parent, that means a parent who has the majority of the parenting time, and has been a parent that has provided for the greater amount of care, custody, and control of children, is a stay-home-parent usually, at what point can the court say, “Well, I’m going to use some income standard for you in calculating child support”?

The answer to that is that until the youngest child is 30 months of age or older, the court is not permitted to impute income. What I typically see in my practice is that experienced judges are going to impute income equivalent to Colorado’s minimum wage, which is $1,768 a month, after the youngest child turns 30 months of age. What does that mean? It means that even if the primary residential parent with the majority of parenting time, who’s been the stay-at-home parent, doesn’t have a job, the court still may impute minimum wage to that parent for the purposes of calculating child support. The court is not permitted and has no authority to order any parent to take another job, leave a job, or go get a job.

The critical factor is at what point will the court impute income to that parent for purposes of calculating child support, and you should always consult with an experienced lawyer who can explain this to you, and so that you can map out a successful strategy to deal with a child support issue or modification of child support in the future.

What is the Meaning of ‘Litigious’?

What does it mean when an attorney is called litigious? I want to talk to you a little bit about some the practices of attorneys in the Family Law arena. How they represent their clients and what does it mean when a lawyer has the reputation for being litigious.

A litigious lawyer is a lawyer who may have the goal of taking every case to a hearing or to trial. This is an attorney who will file lots of motions, ask the court to hold a lot of hearings or status conferences. They will encourage their client to follow along as they do all kinds of things that in many situations can be considered disruptive.

An example of that is an attorney who files a lot of motions, conducts a lot of hearings, may take depositions or sworn testimony of witnesses. May ask for lots of financial documents that they otherwise may not be entitled to. What does this mean for you as a client? Well, this usually translates into one of the parties paying the lawyer who’s litigious, a lot of money because of the nature of the conflict.

And the party who is on the other side, having to hire a lawyer to fight and object to all of the motions and the hearings that this other lawyer is involved in. Family Law is really not the proper arena to have a lot of infighting or litigious action. Because it always in my opinion, adversely effects the client and if there are children involved, the children are going to be witness to the tension, anxiety, and stress from an attorney who is overly litigious.

Sole Practitioner Benefits vs A Big Law Firm

I’m gonna discuss with you some of the things I’ve seen in recent years with attorneys in the family law practice, in particular the difference between lawyers who are members of big law firms and lawyers who are solo practitioners.

I recently met with a client who came to see me about hiring me and we did an interview, which is called an initial consult. And I do not charge for those initial consults in an effort to help people who are trying to make this critical decision. This lady was telling me that when she went to this law firm, she knew that they had six lawyers working there and that they were all practicing family law and so she met with someone in the firm and agreed to hire this law firm. When she came back to the law firm to turn in her financial affidavit and other financials, she was given another attorney to meet with her because that attorney was not available. And then when she had a hearing, she met the third lawyer in the law firm. Throughout the time that she was working with the lawyers that she hired, she never met with the same lawyer more than once. She was meeting with multiple attorneys and never really understood who was working on her case.

In this office, and in other offices where there’s a sole practitioner, the client is going to get hands-on experience from the same lawyer that the client has met on day one and the same lawyer on day 181. That means there’s going to be continuity. You’re not going to be shuffled around from one lawyer to another in a firm. Whether there’s six lawyers or 16 lawyers in a law firm, I feel it’s not fair to a client. It’s always best in these situations for a client to have an experienced lawyer whose going to be the assigned lawyer, whose going to know everything about the client’s case and is gonna work with that client on a consistent basis.

Benefits of Mediation Arbitration

I’m going to talk to you a little bit about the concepts of mediation and/or mediation arbitration, and what is that.

First off, mediation is required in El Paso County when any contested family law matters are set for a hearing. In other words, the court requires that the parties attempt to mediate their disputes before they head off to a contested hearing, and oftentimes, I’ll go to a pretrial conference with a client, and the judge will ask, one of the very first things that judge will ask, is, “Has mediation been scheduled? Has it taken place? And what happened at mediation?” This gives the court some added information about the case. It tells the judge, did the parties engage in mediation to try to resolve their differences, and did they put some effort into discussing what the issues are before they headed to a hearing.
Mediation is conducted by a neutral third party, who’s not supposed to take sides, but is to take information back and forth between parties, to see if a case can be resolved. In El Paso County, there are lots of very fine private mediators, who will conduct the mediation in a law office or neutral setting, and there’s also the El Paso County Office of Dispute Resolution, which is in the basement of the El Paso County Courthouse, and you can find the Office of Dispute Resolution in counties all over the state of Colorado.

The other option that people have is to conduct what they call mediation arbitration. A lot of times, a mediation arbitration can be scheduled a lot faster than a final orders hearing or a court hearing with a judge. In a mediation arbitration, the parties must give specific consent, usually it’s in writing, and signed by the parties, that allows the mediator to arbitrate the case. This means that you’re giving the authority to the mediator, to act as an arbiter, if not all of the disputes can be agreed upon. In this way, your arbiter is going to act the same way as a judge.

The reason I like arbitration in a lot of cases is because it keeps everyone out of court. It allows people to sit in the comfort of a conference room in a law office somewhere and not have to be dressed up, not have to go to a public hearing in the courthouse, where the public is invited, not to be peppered by questions from the other side, but freely give input in a relaxed setting, that is going to be conducive to settling a case. And most of the time, most of the situations in a mediation arbitration, because of the fact that the parties have selected an experienced arbiter, cases settle and do not head to court. But if they do, the arbiter will have heard from both parties and made a decision just like a judge.

One distinction, in arbitration, there’s usually not an appeal process, meaning that unless certain guidelines are met, you’re not going to be able to appeal an arbitration decision that you did not like, which is contrary to what will happen if a judge makes a ruling at final orders. I have found that the cost savings to the client in either a mediation or a mediation arbitration can be significant.

Where Is My Retainer?

I’m going to discuss with you a little bit about some unique qualities of a retaining an attorney in a family law case, and that is that when you hire an attorney in a family law matter, the amount that you give the attorney is classified as a retainer. That’s the amount that you pay up front to the lawyer in order to engage the lawyer’s services.

The money that you pay the attorney upfront is not paid to the attorney until it is earned, which means that the lawyer has to show you billing, and the time that the lawyer has spent on your case, the time that the paralegals have spent on your case, before the lawyer is allowed to transfer any portion of the retainer from a special account to the lawyer so that the lawyer gets paid.

Money that the lawyer receives in a retainer goes to what they call a COLTAF, that’s C-O-L-T-A-F, account, which is an interest-bearing account that the state regulates for all retainers. Clients who have paid a retainer want to make sure that they review their billing statements when it goes out, and that they are satisfied that the billing statements from the attorney are correct. Billing statements from an attorney that reflect what the attorney was paid as a retainer vary from firm to firm, and based upon the experience of the lawyer.

One thing you should be looking at when you’re looking at your bills is does it accurately reflect the time that the lawyers spent, that the paralegal spent, and does it also reflect the court costs that I paid from the retainer? As an example, one of the court costs that you’ll see when a new divorce action, or new custody action, is filed is that the state of Colorado will charge the lawyer for filing about $240. If it’s a post decree issue, like a motion to modify custody or parenting, there’ll be a court cost of $105. So, attorney’s fees are very strictly regulated. Attorneys are not permitted to take retainers without doing legal work or any portion of that. When a case is finished, when your case is done, even if there is one penny in the trust account, you’re entitled to get that back from the lawyer when the case is concluded.

Domestic Violence and Police Reports

Many times the cases that we see in family court involve one, or both parents, being charged with crimes. The most common type of crime that impacts family law cases, are domestic violence or domestic violence and abuse charges.

It’s always important to provide those police reports, if you have them, to your lawyer. If domestic violence has occurred in your relationship and there are not police reports, it may very well call into question whether or not domestic violence really occurred or not.

In one case I had most recently, even though my client had testified that she had been a victim of domestic abuse for many many years when her husband became intoxicated, the court found that because she had never called the police or obtained a restraining order against the other parent that she lacked credibility, and the court was not going to restrict the other parents parenting time despite the fact that she had testified that on multiple occasions she was terrorized and victimized by her spouse.

In situations where there is domestic abuse and where the court believes that domestic abuse has been proven and this involves a child custody case, under the Colorado best interests statute a court is permitted as a result of finding the presence of domestic abuse to allow only one parent to have sole decision making over all major decisions effecting the child. So there is a direct impact between being able to prove domestic abuse and domestic violence, and what ultimately will happen with children in a divorce or custody action where a court has to make those kinds of decisions.

Father’s Rights vs Mother’s Rights in Colorado

This topic concerns whether Colorado is a Mother’s Rights state or a Father’s Rights state in custody actions. I’m gonna talk to you a little bit about the law when it concerns whether or not Colorado favors mothers over fathers or fathers over mothers. In fact, in Colorado, the law is gender neutral. That means that the court makes a decision about what’s best for a child regardless of whether or not the parent who is requesting parenting time or primary care is a man or a woman. It is not something that a court is even allowed to consider whether one parent is female or male.

I’ve often heard advertising from lawyers stating that they are a father’s rights law firm and I have to chuckle when I hear that because obviously that advertisement is meant to place fear into the the heart of a father who’s seeking parental rights. Unnecessarily, that father should know, just like all mothers should know, that when a judge decides parenting time and custody, a judge is doing that regardless of gender. That means that the judge is colorblind and is not going to prefer a man or a woman, and a father or a mother should not have preference in a custody case.

A court has to carefully consider the child’s best interest. The court is going to look at what kind of pattern of parenting time has taken place between the parties, how are the children or the child bonded with each parent. And this is another serious, thoughtful consideration that you should be making when you are involved in one of these cases, so that you can come up with a strategy that you know a judge is going to be looking at in deciding your child custody case.

What Is a Civil Union?

In Colorado civil unions have the same procedure as the civil divorce statutes. That means that same sex couples who have children or who do not have children are going to be treated the same way as heterosexual couples going through a divorce.

They’re going to be given the same rights and the same responsibilities as any other couple in custody actions or divorce actions. So when there’s been a civil union or a marriage involving same sex couples and a year or two years go by or into the future those couples wish to get divorced in Colorado they’re going to be given the same rights and responsibilities under the law to terminate or end their marriage as any other parties would be.

It’s always important to consult with an attorney when you’re going through this process who’s familiar with the civil union laws and how those may have different kinds of aspects to them than other cases but they are going to be treated by the court in a fair way just as every other type of family law matter.