How to Attack a Colorado Prenup

Previously we went over the general requirements for a prenuptial agreement in Colorado. There are some important changes to Colorado law on prenups coming next week, but we’ll first discuss the ways a prenup agreement may be invalidated. These concepts apply to both prenups and agreements made after people are married.

Change in Circumstances

Although nearly impossible, a spouse seeking to attack the validity of a Colorado prenup may successfully argue that a change in circumstances justifies a court finding that the state’s interest in the welfare of a divorced spouse outweighs the freedom to contract. A court may consider factors such as (a) whether there are children, (b) the length of the marriage and (c) if there was a detrimental reliance on the marriage. But a person considering a Colorado prenup should never assume that a change of circumstances will allow them to wiggle out of an otherwise valid agreement.

Violation of Public Policy

Similar to a change of circumstances, there are several topics where the sanctity of contract will be overridden by Colorado public policy. For example, a provision on child support or religious training for children will be invalidated by a Colorado court. Moreover, agreements where a party waives spousal maintenance or attorneys’ fees may be unenforceable if it would be “unconscionable” under Newman v. Newman and In re Marriage of Ikeler, respectively. Whether a provision is unconscionable is determined at the time of the Colorado divorce.

Fraud, Duress or Undue Influence

A contract must be agreed to voluntarily. The same principle applies to a Colorado prenup. If a person is forced into signing a prenup, it will be unenforceable. Factors such as the time between the execution of the prenup and the wedding, or whether Colorado lawyers are involved will be relevant. But the threat of calling off the wedding is not enough for duress or to invalidate a prenup.

Lack of Disclosure and Independent Counsel

Parties to a Colorado prenup need to disclose their financial circumstances. However, there isn’t a bright-line rule on what is sufficient disclosure for a binding prenup. And as referenced above, lack of independent counsel may be considered when a court evaluates whether parties voluntarily and knowingly entered into the agreement. The best practice is for a party negotiating a prenup to (a) hire a Colorado lawyer, and (b) produce as much detail about their finances as possible. Those details should include bank, mortgage and investment statements,  copies of pay stubs, appraisals for businesses or real estate and information about any contingent or prospective assets such as trusts or inheritances.

Coming soon is a post about the new changes to the Premarital and Marital Agreement Act in Colorado.

U.S. Supreme Court Issues Major Ruling on Privacy of Cellphones

In what is surely a landmark case, the U.S. Supreme Court unanimously ruled today in Riley v. California that police need a warrant to search the cellphones of people under arrest.

The courts, including here in Colorado, have long allowed warrantless searches in connection with arrests under the auspices of police safety and preservation of evidence. But Chief Justice John Roberts, writing on behalf of the court, reasoned that the amount of data on cellphones protected them from routine inspection.

For more information and a full copy of the decision, click here. This exact issue came up several years ago before Chief Judge James Boyd in an Aspen drug case.

Wedding Shuttle Driver Gets DUI in Aspen

The below is from the Aspen Daily News. Not good.

Wedding shuttle driver arrested for DUI

A shuttle driver working for Snow Limo taking 15 passengers who had attended a wedding at the Pine Creek Cookhouse on Saturday was arrested for suspicion of driving under the influence, according to the Pitkin County Sheriff’s Office.

Ken Maupin, 53, of Aspen was arrested at 12:31 a.m. on Sunday in the parking lot of the Aspen Chapel by sheriff deputy Bruce Benjamin. According to deputy Jesse Steindler, the passengers sensed that he was allegedly intoxicated. After they witnessed him allegedly speeding, weaving, swerving and driving off the road, they asked him if he was intoxicated. Passengers told police that Maupin’s speech was slurred. They ordered him to stop the bus, which he did, Steindler said. One of the passengers drove the van, with Maupin in it, down Castle Creek Road and eventually called 911 once they were in cell service range. One of the passengers said she saw an empty bottle of alcohol on the driver’s seat, which Maupin allegedly grabbed and tried to leave the scene when they arrived at the church parking lot, but passengers detained him until police arrived, according to Steindler. A passenger reportedly recorded Maupin exiting the bus with her cell phone. No further details were available Sunday evening.

Requirements for a Colorado Prenup

We want prenup! Yeah, it’s something that you need to have. – Kanye West in “Gold Digger” (feat. Jamie Foxx)

Kanye West’s wedding to Kim Kardashian apparently was delayed because of negotiations over their prenup. Here in Colorado, a revision to the Pre-Marital and Marital Agreement Act will become effective in July. The below are the key components to a pre-marital (aka prenup) agreement.

  1. In writing and signed by both parties
  2. Voluntary (one party cannot force the other into the contract)
  3. Disclosure of assets and liabilities
  4. Cannot limit or waive child support
  5. May not violate public policy

In coming posts, we’ll talk about ways that a prenup can be attacked and the changes to Colorado’s new law that becomes effective in July.

What You Should Never Do if Arrested

Following up an earlier post about what you should do if arrested, the below is a list of things that you should never, ever do if you’re arrested.

  • Do not speak— with anyone.
  • Do not say anything about the incident to the police or cellmates. The police will often put an informant in the cell with you or a cellmate may try to embellish what you say so that they can cut a deal with police.
  • Do not act like a jerk or insult the police or medical staff. Treat law enforcement officers with respect, do not argue, raise your voice, or get belligerent. If you are at the police station under arrest, the district attorney will be the person that determines your future, not the police. Let the police do their job: be nice and be quiet.
  • Do not run from the police for several reasons: first it will not look good in court; second, they will probably catch you; and lastly, once they catch you, the police may get injured tackling you and additional charges may be leveled against you—some of which are felonies.
  • Under no circumstances give the police permission to search anything. They may still search, but make sure it is without your permission.
  • If the police come to your home or apartment, do not let them in unless they have a search warrant. If they have an arrest warrant for you, go outside with the police; otherwise, do not go outside. It may be that they need an arrest warrant to arrest you in your home and, if you go outside, you may be arrested without a warrant. If the police bring you to your home to get clothes, etc., refuse. The police may use this technique to gain entry into your home.
  • Do not admit to drinking or ingesting drugs. Do not admit that you’re coming from a bar or a party. Remember – do not speak.
  • If you’re arrested for DUI, do not say, “I’m a local. How about you just take me home and we forget this happened?” You will look like an asshole. This regularly happens in Aspen or Vail DUIs.

The list above is modified from a post by Peter LaSorsa at the American Bar Association.

What You Should Do if Arrested

When not in trial, criminal defense attorneys spend much of their time trying to mitigate the damage done by a client during their arrest. I frequently see criminal suspects carelessly try to explain their side of the story and unknowingly shoot themselves in the foot.

What should a person do if they are accused of a crime? I’ve modified the list below from the American Bar Association:

Photo credit: Visualize Us
Hear no evil, speak no evil, see no evil
  • Try to remember witness names. Find out their phone numbers, addresses, and other contact information. If you can’t remember their names, try to remember someone’s name who may know them. For example, if you know they are the bouncer at the bar, find out from another person their name and contact information.
  • Remain silent. Remain Silent. Period. The only thing you can accomplish by talking about your arrest is to hurt your case. You have no obligation to speak with the police. The police may try to trick you and will sound like they are your buddies. Do not speak with the police or anyone else. Ask to speak with a criminal defense attorney.
  • Be polite and respectful towards the police but be firm, do not speak.
  • Contact your attorney or ask for one immediately. If the police insist on speaking with you, reaffirm your desire to speak with your criminal defense attorney.
  • Try to remember the badge numbers of any officers you are involved with, as well as their patrol car number(s) and which police agency they are from. Many times there are multiple police agencies responding to a call. For example, there is a difference between the Eagle County Sheriff’s Office and the Avon Police Department.
  • Make sure that your attorney is present for any lineups or testing (such as drawing a blood sample). Demand that your attorney be present.
  • If you are injured, be sure to take photographs of the injuries as soon as possible and get medical attention at once. Make sure to go into detail with the medical staff about the type of injury and cause of injury, including names.

Colorado Felony DUI Bill

A proposed legislative bill to make repeat DUIs in Colorado died yesterday in a Senate committee. I wrote about the proposal here at RKV Law. For more information on the political gamesmanship that led to the bill failing to make it out of the Senate committee, read the Denver Post’s blog post on the subject here.

As it stands, the maximum penalty for a DUI conviction in Colorado is 1 year in jail. Despite the setback for proponents of harsher penalties for Colorado DUIs, a person facing DUI charges should nevertheless seek legal assistance from a skilled DUI defense attorney. This point is especially important for those accused of drunk driving in Aspen, Glenwood Springs or Vail because of the reliance on vehicles for transportation in the mountains.

Child Support and Taxes

Tax season is upon us and I’ve been getting a lot of questions about child support and taxes. First, Colorado child support is generally not taxable. Unlike maintenance/alimony, the payor of child support cannot deduct paid child support from their taxable income. Similarly, a parent receiving child support need not report that money on their tax return.

Second, a minor child can be claimed as a dependent on a parent’s tax return. Who gets the dependency exemption? Pursuant to C.R.S. 14-10-115(12), the Colorado court is required to allocate the right to claim a child as a dependent in proportion to the parents’ contributions to the costs of raising the child. If a mother has more parenting time than the father and she pays for the child’s sports, tutoring, health insurance, daycare, etc., the court will likely give her the right to claim the child as a dependent.

Nevertheless, the parties can always voluntarily agree on which parent gets to claim a child in a particular year. Although Colorado has done away with the term “custody” in favor of “parenting time,” the IRS predictably is behind the times. The “custodial parent” matters for IRS purposes and is defined as the parent with the most overnights. Because there are an odd number (365) of days in a year, one parent will almost always have more than the other even when they are “50/50 parents” or have “equal time.” That parent is then the “custodial parent” under the current IRS regs and the one eligible to claim the child as a dependent. There are times when the IRS regs conflict with the Colorado law on who gets to claim the child as a dependent. As a result, it is usually a good idea for parents to sign IRS Form 8332 along with their divorce or allocation of parenting rights agreements to ameliorate any issues down the road if the parties agree to split the right to claim a child on future tax returns.

In addition to the dependency deduction, the current tax code allows for a separate deduction for work-related day care and a credit (different from a deduction) for each child. The rules on those deductions and credit are complex because they hinge on the taxpayer’s income and other factors. Tax laws change all the time and my advice is always for a client to consult with a CPA or tax attorney before signing a deal.

Although parties going through a Colorado divorce or dispute over parenting rights often times will disagree about the color of the sky on particular day, there are times when it makes sense for them to strategically work together on taxes. For example, if one parent cannot benefit from the tax credit because they make too much money, they can offer to give the other parent the right to claim that child and split the amount of the credit. It results in a “win-win” for both parents. It is rare to characterize anything as a “win-win” in a Colorado divorce or when discussing anything related to taxes, but it is possible if the parties have thoughtful divorce lawyers and CPAs.

RKV Law’s Press Release on Super Lawyers Rising Stars List

Attorneys T.J. Voboril and Ryan Kalamaya of local full-service law firm Reynolds, Kalamaya & Voboril, LLC have been selected to the 2014 Colorado Super Lawyers Rising Stars list. Each year, no more than 2.5 percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor.  This is Mr. Voboril’s second consecutive Rising Stars selection and, for the second year in a row, Mr. Voboril is the only attorney named to the Colorado Super Lawyers or Rising Stars list who hails from the Summit and Eagle County region.  Mr. Kalamaya is the only attorney in the Central Rockies named to the Rising Stars list in the family law category.

Included as a Rising Star for business litigation, T.J. is a general civil litigator with considerable experience handling business, homeowners’ association, real estate, construction, and employment disputes on behalf of business entities, organizations, and individuals.  T.J. is also the owner of and mediator for Voice Of Reason Dispute Resolution.  After graduating from Dartmouth College in 2002, T.J. received his law degree from the University Of Virginia School Of Law in 2005.

Named as a Rising Star for family law, Ryan is a trial lawyer. He primarily handles cases involving personal issues – divorce, child custody, complex property valuation, and persons accused of committing crimes.  As a former Eagle County prosecutor, Ryan is well-versed in what it takes to build a successful case.  A varsity baseball player at the University of Virginia, Ryan earned his J.D. in 2007 from the University of Colorado Law School, where he was president of his class.

RKV Law is a firm comprised solely of Colorado Super Lawyers Rising Stars, as Dan Reynolds was named to the list in 2010 for real estate.

For more information, please contact Mr. Voboril at (970) 306-6456 and tj@rkvlaw.com, Mr. Kalamaya at (970) 812-3437 and ryan@rkvlaw.com, or visit rkvlaw.com.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.

Pan & Fork Update

It has been quite some time since my last post. We’ve been rocking and rolling at RKV Law and there simply hasn’t been any spare time to post much here.

Our representation of the Workers for Justice and Diversity in Basalt has concluded. The matter was one of the most rewarding and frustrating cases I’ve dealt with. Much of the communication between our side and the Town of Basalt was done indirectly through the media. We learned of the Town’s positions and offers not directly from the key decision-makers, but from picking up the morning editions of the Aspen Times or Aspen Daily News. That was less than ideal. Moreover, I received a couple of baseless threats from a citizen that simply disagreed with us representing the WJDB.

For all the stress and frustration, the Pan & Fork matter reinforced why I pursued a career as a lawyer in Aspen and Basalt. It was a classic case of David vs. Goliath. I stood in the middle of trailers late at night holding hands with my clients and praying for a fair and just resolution. Every time I left a meeting with the group I was humbled by the grace and humility of my clients. Despite being forced from their homes, they went out of their way to say “thank you” or offer me something to eat or drink. Unlikely supporters like Escobar in Aspen chipped in for an event that raised over $1,600 for the group. It was and invigorating and rewarding experience.

Basalt is changing dramatically. The success of Whole Foods and the Willits area is a double-edged sword. The bump in tax revenues is good for Basalt. The real estate market around Willits is on fire. However, there’s a cost. Several key businesses have left downtown Basalt in favor of Willits. There’s increasing pressure to balance out  Willits with additional, modern amenities in the core area of Basalt. The Pan & Fork Trailer Park is at the heart of that sea change. Only time will tell how everything shakes out.

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