I get many inquiries with this question: Who may claim the dependency exemption for income tax filings? The law is simple, but applying it can be complicated. Just like life itself, huh.
Here is the Colorado statute:
Dependency exemptions. Unless otherwise agreed upon by the parties, the court shall allocate the right to claim dependent children for income tax purposes between the parties. These rights shall be allocated between the parties in proportion to their contributions to the costs of raising the children. A parent shall not be entitled to claim a child as a dependent if he or she has not paid all court-ordered child support for that tax year or if claiming the child as a dependent would not result in any tax benefit.
There you have it.
You do need to make sure the correct forms are filed with the IRS. I have a case right now where the financial gain of receiving the exemption is nearly equal to the entire year of child support payments owed.
Spring break - no post next week.
Custody and the News
It was reported that James Cook, a dad who advocated for father's rights, recently passed away. Listen to a story about him here, where he is referred to as the father of joint custody, courtesy of National Public Radio. (The audio link runs 3:22 minutes.)
So, what about Colorado law? The first thing to know is that the law that applies in divorce cases no longer uses the term "custody." Custody has been replaced by two terms, representing distinct concepts, "allocation of parental responsibilities" and "parenting time." The new terms reflect the two concepts of law that previously constituted the one term "custody."
Allocation of parental responsibilities is decision-making on major issues for the child. That is, who will have the legal right to make major decisions. Will they be shared, or not. Major decisions typically are those regarding health, education, religion, and others.
So, what about Colorado law? The first thing to know is that the law that applies in divorce cases no longer uses the term "custody." Custody has been replaced by two terms, representing distinct concepts, "allocation of parental responsibilities" and "parenting time." The new terms reflect the two concepts of law that previously constituted the one term "custody."
Allocation of parental responsibilities is decision-making on major issues for the child. That is, who will have the legal right to make major decisions. Will they be shared, or not. Major decisions typically are those regarding health, education, religion, and others.
Parenting time is simply a visitation schedule, and with whom the child will be, and when. It, of course, encompasses the idea of where the child will primarily reside, and when the non-primary residential parent will spend time with the child. These are the two issues, and terms, that will be used and applied in your divorce or custody case.
Colorado law has indeed changed over the years, thanks to James Cook and others, and is now more receptive to each parent sharing decision-making responsibility, and sharing parenting time with their children. In other words, joint custody.
Trial Judges Blink Too
How many of you have read Blink: The Power of Thinking Without Thinking by Malcolm Gladwell? This was a number one bestseller. If you didn't read it, you likely heard about it through the large amount of attention from the popular media. Other than the fact that the ideas in Gladwell's book are interesting and thought-provoking, why mention it here among the ocean of other comments about it? Well, Judges are decision makers, and judges are people, but there is another reason. There is a scholarly article here that actually explores intuition (Gladwell), and the deliberative process, as applied to trial judge's decisions. Relevant for us, because in Colorado a trail judge will decide your family law case.
Consider this:
"Collectively, these results suggest that judges tended to favor intuitive rather than deliberative faculties. First, the judges had trouble with the CRT (the test), even though the CRT questions are not difficult. Most of the judges answered most of the questions wrong. Second, when judges erred, they generally chose the intuitive answer. Third, those judges who selected the intuitive (wrong) answer indicated the problem was easier than those judges who suppressed their intuition and provided a deliberative answer (and got it right.)"
From C. Guthrie, J. Rachlinski, A. Wistrich, "Blinking on the Bench: How Judges Decide Cases." Cornell Law Review. (Link provided above.)
(Take a look at the test questions yourself, and you will see they only required a moment to see that the most obvious, knee-jerk, superficial answer was wrong, and to then figure out the correct answer.)
This is a great topic, and I'm big-time glossing over the quite interesting debate regarding intuition versus deliberation. Also, what about the effect of fatigue, competence, personal problems, time limitations, administrative pressure, etc., that can also affect a judge? The truth is wrong decisions often are made despite the facts and have important real world consequences. Of course, no one wants to make a mistake but not wanting to doesn't change anything.
A couple posts ago, I mentioned the number of new filings in Douglas County, and encouraged you to consider the caseload of each individual judge. Safe to say trial involves significant risks, huh.
There is a relationship between Gladwell, a judge's caseload, and the article's study results - maybe stronger than some of us might have otherwise thought. If you dig around, every family lawyer would have a story to tell that reveals this relationship - I have a few.
(I personally made a snap judgment about Gladwell's book and consequently have not read it yet. I'm reconsidering.) ; -)
The Supremes, Guns, and Domestic Relations
You may have noticed the Supreme Court in the news last week for its ruling in United States v. Hayes - the briefs, oral argument, Justice Ginsberg's opinion, etc. are at this link. I reviewed this decision and then read some of the news reports and commentary. Wow, any law that involves firearms really gets the commentators fired up. The case involved application of a federal law that, among other things, bans possession of a firearm if a person commits a domestic violence misdemeanor.
In Colorado, the whole issue of banning firearms and domestic violence is a little confusing because the federal law and Colorado state law are different. They overlap, and both apply to persons in Colorado.
For all our sakes, let's skip the legal gumbo, mumbo-jumbo, and jambalaya. Just know this, the Colorado law that bans firearms has a broad reach, and can prohibit the possession, transportation, and ownership of firearms in many circumstances - including when there is no criminal charge filed. In a divorce, the most relevant and common incident where this law reaches is a Civil Protection Order. This type of protection order can be issued when a spouse, or ex-spouse, goes to court, asks for one, and provides good reason to obtain it. Don't need no police. Don't need no prosecutor. If a protection order is issued, after the restrained party has had an opportunity to present their side, the court can impose any condition it feels appropriate to help protect the safety of the alleged victim, including banning ownership and possession of firearms. (Such a civil order may, and can, meet the requirements of the federal law known as the "Brady Handgun Violence Prevention Act. Violating the order could be a felony under Federal Law.)
A Civil Protection Order issued in a case can have a substantial effect on a divorce case, well beyond the possession of firearms referred to in this note. But you know that.
In Colorado, the whole issue of banning firearms and domestic violence is a little confusing because the federal law and Colorado state law are different. They overlap, and both apply to persons in Colorado.
For all our sakes, let's skip the legal gumbo, mumbo-jumbo, and jambalaya. Just know this, the Colorado law that bans firearms has a broad reach, and can prohibit the possession, transportation, and ownership of firearms in many circumstances - including when there is no criminal charge filed. In a divorce, the most relevant and common incident where this law reaches is a Civil Protection Order. This type of protection order can be issued when a spouse, or ex-spouse, goes to court, asks for one, and provides good reason to obtain it. Don't need no police. Don't need no prosecutor. If a protection order is issued, after the restrained party has had an opportunity to present their side, the court can impose any condition it feels appropriate to help protect the safety of the alleged victim, including banning ownership and possession of firearms. (Such a civil order may, and can, meet the requirements of the federal law known as the "Brady Handgun Violence Prevention Act. Violating the order could be a felony under Federal Law.)
A Civil Protection Order issued in a case can have a substantial effect on a divorce case, well beyond the possession of firearms referred to in this note. But you know that.
Divorce Numbers from Douglas County
In 2008, there were 1,568 new divorce filings in Douglas County. In 2007, there were 1,589. In relevant terms, no change. There are two primary domestic court divisions in Douglas County, Division 3 and Division 4. While divorce filings remained steady, filings to modify maintenance and child support increased. I'm sure the present economic conditions are contributing to the increase in requests for modification.
Give some thought to the demands of this caseload for just two divisions, two Judges. Consider how busy a particular Judge might be, and how similar (though the persons are unique) the issues, and conflict, in each divorce case might be. What would you expect?
The silver lining is that not every case results in a court battle, and there are effective alternatives to help those that are disagreed to resolve their dispute. My advice - get good legal advice, be informed, then use the alternatives.
Give some thought to the demands of this caseload for just two divisions, two Judges. Consider how busy a particular Judge might be, and how similar (though the persons are unique) the issues, and conflict, in each divorce case might be. What would you expect?
The silver lining is that not every case results in a court battle, and there are effective alternatives to help those that are disagreed to resolve their dispute. My advice - get good legal advice, be informed, then use the alternatives.
Tips - The Obligatory List
To maintain a blog means you gotta have tips. That nice little compact list of important things. So, below is a list that fits my "pretty good" category of such lists, courtesy of the American Academy of Matrimonial Lawyers:
10 Tips for Divorcing Parents
1. Never disparage your former spouse in front of the children. That person is your child's father or mother.
2. Do not use your children as messengers.
3. Reassure your children that you love them and the divorce is not their fault.
4. Encourage your children to see your former spouse frequently.
5. Treat your children's interests as paramount.
6. Do not let your children act as your caretaker. There are other professionals, associates, and friends for that.
7. If you have a drug or alcohol problem, get treatment.
8. If you are not the custodial parent, pay child support.
9. If you are the custodial parent, do not complain to your children that you are not getting child support.
10. If at all possible, do not uproot your children.
Take heed, I'd say. Consider, I'd say. Pretty good, I'd say.
Glad I got that posted, in the event you were thinking "this guy's not really a lawyer," simply because the blog had no post with a list.
Since we've established this as the lists post, below is a non-obligatory list by you know who. Courtesy of D. Letterman's home office in Wahoo, NE., here are:
Top Ten Signs You've Hired a Bad Lawyer.
10. Begins every sentence with "Well, as Ally McBeal once said..."
9. He keeps citing the legal case of Godzilla vs. Mothra.
8. Just before the trial starts he whispers, "The judge is the one with the little hammer, right?"
7. He thinks he'll win your case, "because there's a first time for everything"
6. He once failed to get a conviction of O.J. Simpson.
5. Whenever he says, "Your Honor" he makes those little quotation marks in the air.
4. Sign in front of law office reads, "Practicing Law Since 2:45."
3. Begins by telling jury, "You all look like you should be on Jerry Springer."
2. Giggles every time he hears the word "briefs."
1. His phone number: 1-600-SHYSTER.
10 Tips for Divorcing Parents
1. Never disparage your former spouse in front of the children. That person is your child's father or mother.
2. Do not use your children as messengers.
3. Reassure your children that you love them and the divorce is not their fault.
4. Encourage your children to see your former spouse frequently.
5. Treat your children's interests as paramount.
6. Do not let your children act as your caretaker. There are other professionals, associates, and friends for that.
7. If you have a drug or alcohol problem, get treatment.
8. If you are not the custodial parent, pay child support.
9. If you are the custodial parent, do not complain to your children that you are not getting child support.
10. If at all possible, do not uproot your children.
Take heed, I'd say. Consider, I'd say. Pretty good, I'd say.
Glad I got that posted, in the event you were thinking "this guy's not really a lawyer," simply because the blog had no post with a list.
Since we've established this as the lists post, below is a non-obligatory list by you know who. Courtesy of D. Letterman's home office in Wahoo, NE., here are:
Top Ten Signs You've Hired a Bad Lawyer.
10. Begins every sentence with "Well, as Ally McBeal once said..."
9. He keeps citing the legal case of Godzilla vs. Mothra.
8. Just before the trial starts he whispers, "The judge is the one with the little hammer, right?"
7. He thinks he'll win your case, "because there's a first time for everything"
6. He once failed to get a conviction of O.J. Simpson.
5. Whenever he says, "Your Honor" he makes those little quotation marks in the air.
4. Sign in front of law office reads, "Practicing Law Since 2:45."
3. Begins by telling jury, "You all look like you should be on Jerry Springer."
2. Giggles every time he hears the word "briefs."
1. His phone number: 1-600-SHYSTER.
What is that on Colfax?
In case you didn't know it, or you were driving around downtown thinking to yourself what the heck are they building at 14th and Colfax Ave. , the new Denver Justice Center is under construction. Maybe you just forgot about it, since construction actually began in August 2007.
The $380 million project gets you a new courthouse, detention center, and parking garage. The new courthouse will be sporting 35 new courtrooms, and 310,000 usable sq. feet. All in 5 stories. The projected move in date is August 2010.
If you like to watch grass grow, then you can track the progress at this website:
Everything you wanted, and more, courtesy of the internet.
The cool part is that this project includes a large art budget, including the largest single public art commission in Denver's history, to Dennis Oppenheim - $1.2 million.
Also of note, "Ralph Helmick was selected to create a suspended sculpture for the atrium of the Courthouse." Alright Mr. R. Helmick, the pressure is on. It's gotta be beautiful, lyrical, metaphorical, meaningful, impressionable, retro-contemporary, and da' bomb, among other things. You can do it.
OK, what we marching ants need to know is that the three domestic relation's courtrooms are now at 303 W. Colfax in the Yasui building. They were moved out of the Denver City and County Building. The magistrate's courtrooms, 15A and 15B, are still there however.
Before you start driving around trying to figure out where you should go, call the court and get the current filing and courtroom information - it changes from time to time.
The $380 million project gets you a new courthouse, detention center, and parking garage. The new courthouse will be sporting 35 new courtrooms, and 310,000 usable sq. feet. All in 5 stories. The projected move in date is August 2010.
If you like to watch grass grow, then you can track the progress at this website:
Everything you wanted, and more, courtesy of the internet.
The cool part is that this project includes a large art budget, including the largest single public art commission in Denver's history, to Dennis Oppenheim - $1.2 million.
Also of note, "Ralph Helmick was selected to create a suspended sculpture for the atrium of the Courthouse." Alright Mr. R. Helmick, the pressure is on. It's gotta be beautiful, lyrical, metaphorical, meaningful, impressionable, retro-contemporary, and da' bomb, among other things. You can do it.
OK, what we marching ants need to know is that the three domestic relation's courtrooms are now at 303 W. Colfax in the Yasui building. They were moved out of the Denver City and County Building. The magistrate's courtrooms, 15A and 15B, are still there however.
Before you start driving around trying to figure out where you should go, call the court and get the current filing and courtroom information - it changes from time to time.
New Rule Regarding Insurance
Beginning January 1, 2009, all attorneys in private practice in Colorado must publicly disclose whether they are covered by malpractice insurance.
The new rule is based on a model/proposed rule of the American Bar Association. The Colorado Supreme Court adopted the rule last fall. Colorado attorneys are required to disclose on the attorney's license registration statement whether they do, or do not, carry malpractice insurance. The disclosed information will be made public through the Office of Attorney Registration, and will be published on their web site. Colorado now joins twenty-two other states that require a similar disclosure either to the client or on their license registration forms.
I can't think of a good reason not to have this rule, and expect more states to enact a similar rule in the future. I particularly like the requirement as it applies to divorce clients. Many divorces involve persons that have never had to deal with an attorney, have never been involved in a legal matter, and may not have any significant experience dealing with binding agreements, discovery, orders, hearings, etc. The same persons are, however, to a significant degree entrusting to their attorney their assets, property, and financial future. They should be entitled to know whether their attorney has liability insurance.
In practical application, and where this rule may be important, is where an attorney is not familiar with divorce or family law. There is sometimes a (mis)perception that divorce law is simple, and any attorney can do it. Setting aside the issue of which is more "simple" for a moment, would you ask your kid's pediatrician to perform a heart bypass? Or your car's mechanic to install your new water heater? If you do, maybe things will work out, maybe not.
The new rule is based on a model/proposed rule of the American Bar Association. The Colorado Supreme Court adopted the rule last fall. Colorado attorneys are required to disclose on the attorney's license registration statement whether they do, or do not, carry malpractice insurance. The disclosed information will be made public through the Office of Attorney Registration, and will be published on their web site. Colorado now joins twenty-two other states that require a similar disclosure either to the client or on their license registration forms.
I can't think of a good reason not to have this rule, and expect more states to enact a similar rule in the future. I particularly like the requirement as it applies to divorce clients. Many divorces involve persons that have never had to deal with an attorney, have never been involved in a legal matter, and may not have any significant experience dealing with binding agreements, discovery, orders, hearings, etc. The same persons are, however, to a significant degree entrusting to their attorney their assets, property, and financial future. They should be entitled to know whether their attorney has liability insurance.
In practical application, and where this rule may be important, is where an attorney is not familiar with divorce or family law. There is sometimes a (mis)perception that divorce law is simple, and any attorney can do it. Setting aside the issue of which is more "simple" for a moment, would you ask your kid's pediatrician to perform a heart bypass? Or your car's mechanic to install your new water heater? If you do, maybe things will work out, maybe not.
The Library and the Attorneys
The Arapahoe County Bar Association and the Arapahoe Library District have joined forces to provide library patrons the ability to speak with an attorney.
You can check out their web page for more information. These are typically in the evening. I know that some of these sessions have involved at least one attorney that specializes in family law. So, check it out. Can't beat free.
Arapahoe Library District Event Calendar
So far, my schedule has not coordinated with theirs, so don't expect to see me there.
You can check out their web page for more information. These are typically in the evening. I know that some of these sessions have involved at least one attorney that specializes in family law. So, check it out. Can't beat free.
Arapahoe Library District Event Calendar
So far, my schedule has not coordinated with theirs, so don't expect to see me there.
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