Suzanne Griffiths Blog

I am a Denver Family Law Lawyer. Clients often wonder if there are times when divorce filings are more likely to happen. My experience shows that January and February are always busy with new filings. Many clients wait until after the holiday season, and filing for divorce is part of their New Year resolution. June and July are also extremely busy times when schools are out and examinations are completed. There are also many disputes over parenting time with the children for divorcing couples during the summer. Although I consult with a number of clients during November and December, most clients do not want to file their divorce cases before the holidays.

Long weekends and holidays always push up the divorce rate. One would think that families would find a great deal of happiness being together over holiday weekends. My experience is that the reverse happens. Being together creates extra stress and stress can lead to divorces.

In practice I take on a number of complex cases in March and April each year. Many clients underestimate the complexity of their situations and find the cheapest available attorney online in January to file their divorces. By March they are receiving large legal bills, and many are having a really bad experience with their divorces, as they discover that inexperienced divorce attorneys are not getting them the results they hoped for. At that point in time they suddenly realize that they are being out litigated and they start a search for divorce attorneys with significant experience and a history of handling difficult cases. I call those the big box cases and they are twice as difficult to handle, because strategic decisions have already been made that set them in a specific direction that cannot always be turned around or undone.

Downturns are popular times to file for business owners. 2016 is a very good time to file for oil and gas business owners. When poverty flies in the window love generally flies out of the door and many marriages break up during bad economic times. During good times, affairs often drive divorce decisions.

Whenever you do decide to end your relationship it is important to carefully investigate and evaluate your choice of attorney. Many family law attorneys are setting up practices with virtually no experience. The economic and non economic costs of being the learning experience for an attorney who has not been involved in many cases can be catastrophic for your family.

Article by Suzanne Griffiths and Nick Nyberg

More and more affairs are being discovered through inadvertent use by spouses of IPads, iPhones and Apple computers that share a common Apple ID account.  Sadly some of these explicit text messages and photographs are initially discovered by children of the marriage. There is nothing more devastating for a family.

Default settings on Apple devices allow synced text/Imessages to appear on top of a locked device. Even if an Ipad is left at home locked with a password , the messages can still be reviewed by anyone looking at the screen.

iCloud is a cloud computing service offered by Apple that synchronizes a user’s devices such as the user’s  iPhone, iPad, or MacBook. The purpose of the service is to connect the user’s devices so that the user can go back and forth from one device to another in real time and without having to save anything. For example, if an iMessage (a hybrid of a text message and an instant message) is received by an Apple user who has multiple devices, the message will be simultaneously received on all of the devices. Typically, this service would be helpful because the user could use any of their Apple devices to respond to a message.

The system breaks down when someone shares their Apple devices but keeps a single Apple account. If you are out running errands with your iPhone and your children are somewhere else using your iPad, then messages that are received by your iCloud account will be received by each of your devices. Those messages could include pictures and messages you would not want anyone else to see

Case after case has occurred where a spouse is able to catch their partner in an affair because of iCloud and the family sharing feature. Even if you have messaging apps like WhatsApp that you believe are private, they are not.  Any photo shared on the app will automatically be downloaded to your photo roll AND to Photo Stream on iCloud. This means, if you share an account with your significant other, any photo is visible to them. If it’s an incriminating photo, you are out of luck and the damage has been done.  It’s not only photos, but also text messages that are synched between devices, have been discovered and lead to break ups.  Even calendar events synched on multiple devices have led to discovery of infidelity. While it may seem like a positive to be able to catch your spouse in the middle of an affair, there are ramifications if steps are not taken to separate your devices from the shared iCloud.

Assume you are on the path to divorce and are emailing or texting confidential exchanges with your attorney. Well, if you still share that Apple ID and iCloud, your spouse may have access to every single thing you send to your attorneys. Sharing the ID can be hazardous in more ways than initially thought. The originally perceived convenience can be transformed into a nightmare in seconds. Spouses can also follow each other by using the “Find my Iphone” feature.

So what? No big deal, you will just split the account, thus creating different iClouds. WRONG. As of now, the only way to separate your account from your ex is to create an entirely new account and basically start from scratch. The way digital downloads, pictures, etc. are structured makes them next to impossible to transfer from one Apple account to another. While you can most certainly share these downloads, when going through a divorce, sharing is often a hard pill to swallow and in some cases, out of the question. This means ideally, both of you would have access to the old account but create new ones to have some privacy. Can you see the can of worms just waiting to be opened? And with the definition of online property being expanded, iTunes libraries could very easily become a divorce issue. Who gets to keep the account that has access to over hundreds or thousands of songs that one party will most likely have to repurchase all over again? The issues with sharing an Apple ID and thus, iCloud are endless.

So what does all of this mean?  It means that privacy is sacrificed for convenience.  Be aware that sharing an account with your spouse could potentially lead to incriminating evidence that will set in motion the divorce you never expected. Know that sharing an account with children could be just as hazardous and damaging to their psyche. Be cautious with your passwords, they can be used against you in ways you never expected, and know that privacy on any electronic device is never foolproof. So, think twice before you share an iCloud account, think twice before you press send, and think twice about the ramifications because once it’s out there, it’ll never go away and in most cases, neither will the consequences.  Users need to be aware how the various default settings  work and these should be disabled  if one of the devices is used by another family member, especially if one of the users is a doctor, lawyer or transmits sensitive  protected information

To ensure none of this happens to you, make sure that each person in your family that owns any type of Apple device has their own iCloud account. That includes your 9 year old child. If he is old enough to use an  Ipad or Iphone then he is old enough to have an account that is separate from yours.  The problem is that Itunes only allows children 13 and older to have their own Itunes account. The solution for children under 13 years is to have an account as part of a Family Shared account (separate but under the umbrella of an adult guardian account).  Another problem is that Family Sharing has its own risks since it enables “Find my Friend” location tracking by default. Do not share your iCloud account with anyone. No really, do not share your iCloud account with anyone! No one – absolutely no one.

Suzanne Griffiths is the Managing Shareholder at Gutterman Griffiths P.C. She can be reached at 303-858-8090 or Suzanne@ggfamilylaw.com.

Nick Nyberg is a Managing Partner at Live Consulting in Denver, CO. He can be reached at nick@liveconsulting.com or (303) 242-8044

Divorce and Dissipation: Hidden Assets and Spending

While you are traveling on a business trip, you decide to take a quick detour visit to the spa resort with that beautiful lady you met on the last flight to Los Angeles. Being the perfect gentleman, you pick up the tab on your Amex card for the room, meals and a nice bracelet for the damsel. You think that your credit card is absolutely your private property and you are free to use it as you please. Wrong! When the divorce hits down the road, your wife’s attorney can subpoena all these records and you will find yourself faced with a claim for dissipating marital assets. Although Colorado is a “no-fault” divorce state, and evidence of one spouse’s misconduct is not admissible in order to determine how property is divided, the court may adjust amounts awarded to each party if it finds that one spouse has squandered or given away marital assets during the marriage.

Making a dissipation claim

When making a dissipation claim, a spouse needs only to prove that the expenditure was made at or during the time of the marriage breakdown or was spent for a non-marital purpose, (such as significant gifts, hotel rooms, air tickets etc for a mistress,) during the marriage. Once this has been established, it is the burden of the other spouse to prove the funds were spent on a legitimate purpose. If the court finds that dissipation has occurred, it will appropriately adjust its division of property to offset the dissipation.

It’s not size that matters:

The fact that you or your spouse dissipated items of little monetary value will not stop the court from adjusting its allocation of resources, although you personally might determine that the costs of pursuing the dissipation claim exceeds the benefits of having it remedied.

Ease up on the vice:

Excessive expenditures on gambling, drinking, or indiscriminate spending are considered grounds for a marital asset dissipation claim. In addition bad behavior that is seen as economic fault can significantly influence the judge’s discretion in making an equitable division of marital assets.

Trim down the transfers:

If you or your spouse transfer assets to a family member, lover, or third party, one of you may be allocated another asset to make up for the loss caused by the transfer.

Play down the paramour:

Spending marital property on gifts for a significant other is a prime example of asset dissipation and very likely to result in a court-ordered adjustment of property division. It also infuriates the spouse who discovers the dissipation, and may substantially reduce any prospect of reaching an amicable settlement out of court.

Business is business:

Business expenses, are not usually considered dissipation when they are within the range of day-to-day operations and comparable salaries.

Your word is your bond:

If you or your spouse agreed to an expenditure during or after the breakdown of the marriage then there are no grounds for a claim of asset dissipation.

Hobbling hobbies:

Expenditures on recreational activities or hobbies that both parties enjoyed, or approved of, during the marriage are not usually considered examples of dissipation.

Assessing the damage:

The court values dissipated marital assets as at the date that they were dissipated. This is particularly important as it pertains to investment or retirement accounts, as if one spouse cashes out, the court will value the investments based upon on the date they were sold, not based upon what they might have turned into had they remained invested. If you are planning to file for divorce it may be useful to investigate your spouse’s spending. If you are involved in an extramarital affair you need to beware of using marital funds to fund vacations, hotel accommodation and gifts for your significant other or you may be faced with a very angry spouse spending additional attorney fees auditing all your bank accounts, credit card statements and tracking your spending. Remember that marital funds are not yours to spend on third party relationships and your spouse will not feel happy about contributing to the weekend at the spa.

What is No-Fault Divorce?

Colorado uses “no-fault divorce” which essentially means that the parties involved do not have to prove blame or responsibility in order to obtain a divorce. Instead, the court must only find that 1) the relationship is no longer viable, 2) irreconcilable differences have caused an irretrievable breakdown of the marriage, 3) there is no reasonable possibility of reconciliation. Previously, many states did not allow no-fault divorce and one spouse would have to prove that the other spouse had done something wrong and was at “fault” for the breakdown of the marriage. Oklahoma in 1953 and California in 1970 were the first to implement no-fault divorce laws, and today, most states have some variation of no-fault divorce.

What Are the PROS of No-Fault Divorce?

1. No-fault divorce allows many people to escape abusive marriages. Without having to point blame, many people can get out of a marriage with less emotional damage and conflict. 2. No-fault divorce is a quicker process, limiting the caseload of family courts and simplifying divorce settlements.

What Are the CONS of No-Fault Divorce?

1. In many cases, only one individual wants to get out of a marriage. No-fault divorce only requires that one of the parties wants a divorce and essentially it puts all the power in one person’s hands. If only one partner wanted to claim “irreconcilable differences” in the marriage they could easily do so. 2. No-fault divorce could potentially increase divorce rates because it makes the process easier. There may be less inclination to work through issues with their spouse. 3. Some spouses feel very wronged and resent the fact that they cannot tell the Court why the marriage ended.

How Long Does it Take to Get a No-Fault Divorce?

Although no-fault divorce makes filing for divorce an easier process, many states still have a waiting period before the dissolution of marriage can become permanent. During this waiting period, the couple can determine whether their marriage is irretrievably broken or if it can be mended. In Colorado this waiting period is 91 days but even with no-fault divorce, most divorces take much longer to sort out than the required 91 days, because of court dockets, complex financial issues and parenting disputes.

Definition of Assisted Reproduction

Assisted reproduction is a blanket term for a number of techniques that aid fertilization. The most common technique is in-vitro fertilization, where a doctor retrieves a woman’s eggs and fertilizes them with sperm in a Petri dish. If fertilization occurs, the doctor will implant the embryo in the lining of the woman’s uterus. Leftover embryos are frozen to be used later. In-vitro fertilization and other assisted reproduction techniques allow women to become pregnant who might not be able to do so otherwise. A woman can be implanted with an egg that is not her own, or sperm can be used from a man other than her husband.

Presumptions of parenthood

If a wife, with the consent of her husband, consents to assisted reproduction with sperm donated by a man other than her husband, through a licensed physician the husband is treated in law as the legal father of any child conceived through the assisted reproduction. Similarly, if a woman, with the consent of her husband, consents to assisted reproduction with an egg donated by another woman through a licensed physician, to conceive a child for herself, not as a surrogate, the wife is treated in law as the legal mother of any child conceived through the assisted reproduction.

Requirements for assisted reproduction

Both the husband and the wife must consent in writing to this procedure, and must also provide their signatures. The procedure must be administered by a licensed physician or advanced practice nurse. Then the physician or advanced practice nurse must certify their signatures and the date of the assisted reproduction and file the contents with the Department of Public Health and Environment. All papers and records pertaining to the assisted reproduction are kept confidential in a sealed file, and are subject to inspection only upon an order of court for good cause shown.

Sperm donors

A sperm donor is not a legal father of a child conceived through assisted reproduction unless that sperm donor is providing sperm for assisted reproduction by his wife.

Dissolution

If a marriage is dissolved before the placement of the embryo, the former spouse is not a parent of the resulting child unless the former spouse consented in a record that if assisted reproduction were to occur after dissolution of the marriage, the former spouse would be a parent of the child.

Death

If a spouse dies before the placement of the embryo, the deceased spouse is not a parent of the resulting child unless the deceased spouse consented in a record that if assisted reproduction were to occur after death, the deceased spouse would be a parent of the child.

When to File as Single

Filing status is determined on the last day of the year. Anyone who is not married as of December 31 must file as single. This means that if you were married for part of the year, but are legally divorced or separated before December 31, you are required to file as a single taxpayer. This is true regardless of how late into the year the divorce or separation becomes final. The sole exception to this rule is if you divorced for the sole purpose of filing as single with the intention to remarry the next year. Under this circumstance, you must still file as married.

When to File as Married

If you are married as of December 31, you must file as married. If you have filed for divorce or legal separation but the divorce or legal separation is not final by December 31, you must still file as married.

Whether to File as Married, Filing Jointly or Married, Filing Separately

Assuming you are entitled to file as married, you may choose to file jointly with your spouse or separately. While it is generally advantageous to file jointly, this is not true all the time. You should compute your tax liability under both separate and joint filing to see which one is best in your situation.

What happens if your marriage was annulled?

If your marriage was annulled prior to December 31, you must file as single. Since an annulled marriage legally never existed, you are also required to file amended tax returns for the previous years. On these amended tax returns, you should file as single.

What steps should parents take regarding child support when one child becomes emancipated?

Child support does not automatically reduce by half when one of two children emancipates. The payor needs to file a motion with the District Court to modify child support.

How do I go about modifying child support and when is it effective?

Child support modifications are generally retroactive to the date of filing the motion to modify so no time should be lost in filing with the Court. A Motion to Modify Child Support should be prepared and filed as well as served on the opposing party. Both parties will need to file a financial affidavit and financial disclosures. Once incomes are determines a child support worksheet is prepared to determine the amount owing.

What will the Court factor into the Child Support Worksheet?

The Court will include the incomes of both parties, the number of overnights spent with each party, work related daycare costs, health insurance for the children and any extraordinary expenses.

Always check your state’s specific laws

How courts determine which party gets the family home varies state to state. Remember to always check your state’s specific laws. For example, a Colorado court may rule differently on the matter than a court in another state. All of the following scenarios are examples of how a Colorado court could handle allocation of the family home.

Parent with primary care of children

When considering the division of property, courts consider the economic circumstances of each spouse at the time the division of property is to become effective. The Court must consider the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse with whom any children reside the majority of the time. Therefore the parent who has primary care of the children has the advantage.

Financial feasibility

A court may also consider whether it is financially feasible for the primary parent to maintain the home, refinance the mortgage and pay the obligations related to the home.

No fault divorce vs. fault divorce states

Whether your state is one that grants divorces based on fault, could possibly affect the court’s decision. For example, Colorado is considered to be a “no fault” state. What this means is that if one of the parties is having an affair or has abused the other, the court cannot take that information into account when allocating the assets. However, a court in a state that allows divorces based on fault might possibly assess the situation in a different way.

Gift, inheritance, or owned prior to marriage

If the family home in a divorce was received by gift, inheritance or was owned before the marriage then it will generally be awarded to the spouse who received the gift or inheritance or who owned the home prior to marriage.

Additional factors

Other factors that a court will consider in allocating the family home include the contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as a homemaker.

1. DO think really carefully before you start the process. The decision will have a long term impact on your life and those around you. Never threaten to divorce until you are ready. It will seriously injure your partner and he or she may simply start divorce planning, which could hurt you.
2. Get your documents organized. If you are more efficient, your attorney will be as well and you will save money. Gather your past tax returns, bank statements, check registers, investment statements, retirement account statements, employee benefits handbooks, life insurance policies, mortgage documents, financial statements, credit card statements, trusts, Social Security statements, automobile titles, etc. If your spouse is self-employed, it is important to gather as much information as possible about the finances of the business. Make copies of any useful financial information stored on your home computer.
3. Think about your children and how best to reduce the impact of the divorce on their lives. If you remain very solid and stable, it will help them to do so as well. If you fall apart they will as well. Plan how you expect to divide the parenting time with the other parent. Do not pull the children into the conflict or ask them to take sides. It’s not fair and will simply create emotional problems for them.
4. Make sure that you have sufficient funds saved to pay for your expenses for at least 3 months if you are the spouse with limited access to financial resources. Many spouses become spiteful when the divorce starts and cut you off financially.
5. Obtain good advice from a respected attorney who is knowledgeable about divorce and families in your area. Research whether your attorney has the skills and reputation to assist you in the divorce. It is critical to have the best representation during this very tough time in your life. Check their ratings on websites such as Superlawyers.com, AVVO.com or Martindale.com.
6. Make sure you have available credit. Apply for your own credit card, because your spouse may cut access to your credit card when you file for divorce.
7. Have a safety plan if there is any history or risk of domestic violence. Understand that violence can escalate when you leave your spouse.
8. Possession can be nine tenths of the law as regards custody of children. Unless there is a good reason to separate quickly, it is much smarter to remain with possession of the children until you work out a temporary parenting plan. Make sure that you know the children’s teachers, counselors, doctors and other professionals. The last thing you want is to have the school teacher tell an evaluator that they do not know what you look like and have never met you.
9. Surround yourself with supportive family and friends. You will need all the help and support you can get.
10. Try to remain civil and treat your spouse with respect. You may have to attend weddings, graduations and funerals with them in the future. Avoid making statements in anger. NEVER send E mails when you are angry or upset. These have a way of appearing as Exhibit A in your divorce case, especially when children are involved.

Suzanne Griffiths is vice president, co-founder and shareholder at Gutterman Griffiths PC . She may be contacted at Suzanne@ggfamilylaw.com or 303-858-8090.