Tag Archives: Colorado law

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.

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.

Increased Fines for Truckers on Indy Pass

Aspen truck drivers of extended tractor-trailers will likely be facing major fines for driving up Indy Pass after the Colorado State Senate votes on a proposed bill in a few days. If a vehicle is over 35 feet long, the fine would be $1,000. The amount increases to $1,500 if the vehicle blocks traffic.

As Pitkin County Sheriff Joe DiSalvo is reported to have said before the Senate Transportation Committee yesterday, truck drivers often disregard restrictions over mountain passes because the fines are less than the savings in gas and time. When I worked in the Eagle County DA’s Office, we frequently saw truckers from companies like Fed-Ex unsuccessfully running the gauntlet up Vail Pass. There were so many closures of Vail Pass from jackknifed semis during the winter that they raised the fines and employed other restrictions to make sure truckers could safely make it over. While I-70 and Vail Pass are not without their problems, the issue of stalled semi-trucks has been reduced significantly.

More information about the proposed Indy Pass bill can be found here.

What You Can and Cannot Say in Court

I was in court the other day on several criminal cases. One involved a dispute between neighbors. Both people were charged by the police. My client received a favorable plea offer of a deferred judgment and was there to take responsibility for an unfortunate event. The case will be dismissed in a year if he jumps through a few hoops. He simply wants to move on with his life and was happy with the plea bargain.

In contrast, the other neighbor refused to accept the same plea offer and set his case for trial. He happened to be at court on the same day with his criminal defense lawyer and stood up during the sentencing hearing to rant about how my client had gotten off easy. He thought my client was completely at fault for the incident. His decision to address the Court offers a lesson in what statements can or cannot be used at trial.

Photo Credit to Ken Lopez at A2L Consulting
Speak No Evil

We have all heard the Miranda warning a hundred times on television: “Anything you say or do may be used against you in a court of law.” As a former prosecutor for 2.5 years in Eagle County, I can safely say that “may” is better read as “will.” Generally, anything a suspect says or does that suggests guilt will be repeated over and over again by the prosecutor. Statements by suspects are often the biggest issue in criminal trials. Prosecutors love them; criminal defense attorneys try to spin them. Going back to an earlier post, admissions are almost always the “boogers” or “warts” in a case for a person accused of a crime. George Zimmerman’s recent trial is a case in point.

Aren’t statements made by a defendant hearsay? No. Pursuant to Colorado Rule of Evidence 801(d)(2), a statement made by a defendant is not hearsay when it is used against him by the prosecution. For example, when a guy is pulled over in Aspen for a DUI and says, “I was at the Belly Up for a concert and had a few drinks,” his admission that he drank will most definitely be used against him at trial. The caveat to the rule is that the admission will not be admitted as evidence if the statement was illegally obtained by the police officer. That is because of the doctrine known as the “fruit of the poisonous tree,” which is a whole subject unto itself.

However, statements made while negotiating a plea bargain are generally inadmissible under Rule of Evidence 408. If a Vail criminal defense attorney is discussing a case of domestic violence with the Eagle County prosecutor and admits that his client hit the victim, it is extremely unlikely that statement will come in at trial.

There are exceptions to that rule on settlement discussions. A 2007 amendment to Rule 408 allows statements in a criminal case made by a defendant negotiating with a public officer in a separate civil case. A prime example would be a defendant admitting he had been drinking in Aspen during his DMV  revocation hearing. That admission would likely be used against him if he later went to trial with his Aspen DUI lawyer. But the general policy of the Colorado law is to encourage people to discuss settlement — whether it be in a criminal case, civil lawsuit or a divorce — openly and candidly. The same principle applies to discussions in mediation.

How do Rules 810(d)(2) and 408 apply to the neighbor case above? Easy. The neighbor admitted a number of things happened. He admitted that he damaged my client’s property. That may open him up to a new charge of criminal mischief. Whoops. He also said that he grabbed my client. That supports the existing charge of third degree assault. Whoops again. He essentially boxed himself into a very specific and detailed story about what happened. If he takes the stand at his own trial, the prosecutor will hold him to that story.

Furthermore, court proceedings are recorded. The prosecutor will undoubtedly get a transcript of exactly what the neighbor said and have it ready in his back pocket for trial. If the neighbor strays at all from his earlier statements, the prosecutor will question his credibility through impeachment. Those inconsistencies can add up with a jury, especially in Aspen and Vail.

There was little to be gained from the neighbor’s rant in court. He could have simply told the judge that he disagreed with the favorable plea bargain and sat down. A lot was lost. If he follows through with his plan to go to trial, he may learn the hard way what you can and cannot say in a Colorado court.

The X Factor for X Games Aspen

The X Games started last night in Aspen. There will be plenty of news on ESPN and the local Aspen papers about the results. What will likely be glossed over, however, are the stories of attendees who get in trouble while they’re here in the Roaring Fork Valley.

Aspen Ice Sign

On one hand, recreational marijuana has changed the legal landscape for those visiting Aspen this year. Undoubtedly, many will flock to the local pot shops as part of the burgeoning marijuana tourism industry. The Aspen Daily News is running a story today about the TSA seizing 36 ounces of marijuana edibles at the airport. It’s a sexy story because it’s new; we typically associate drug busts at airports with Pablo Escobar, cocaine, guns and violent drug lords. One could argue that the new X factor for X Games Aspen is weed.

On the other hand, Aspen law enforcement officers will likely be dealing with incidents related to a different X factor at this year’s X Games: alcohol. Last year there were 114,500 fans at the Winter X Games. Hotels in Aspen will be at max capacity.  Although RFTA is responsive to the demand for transportation down-valley to Basalt, Carbondale and Glenwood Springs, a number of people will make a poor decision and get behind the wheel after drinking too much. Aspen DUI lawyers will be called to represent those arrested for drinking and driving. I’ve written about DUIs before. It is legal to drink and drive in Colorado – it is a matter of degree. The amount of alcohol consumed, as well as the time between drinks, will be X factors for Aspen DUIs.

In addition to DUIs, there will likely be an increase in assaults in Aspen. Arguments that otherwise would be brushed off by sober people will lead to physical fights and a night in the Pitkin County Jail. Husbands and wives, boyfriends and girlfriends, and friends out for a fun night will step over the edge into the criminal world because they’ve had a bit too much to drink. Their judgment will be clouded. They will make a costly mistake. If that mistake involves two people who are or used to be in a romantic relationship, they’ll have to navigate the tricky implications attached to domestic violence. Again, the X factor will likely be alcohol.

Aspen locals will tell you that a disproportionate number of attendees at the Winter X Games are teenagers. Getting away from mom and dad for a party weekend is a right of passage. However, picking up a MIP in Aspen can have significant consequences down the road for college and driving plans. Those charged with a MIP should consult with an Aspen lawyer on the collateral damage from picking up a ticket for underage drinking. Unlike Aspen DUIs or assaults, the amount of alcohol will not be a X factor for a MIP – it is a strict liability offense in Colorado. If a person is under the age of 21, they cannot legally drink alcohol unless a specific exception exists. Officers will request a minor to submit to a portable breath test (PBT) for alcohol.

The Winter X Games is a shot in the arm for the local economy. There is cause for celebrating the extension of the X Games remaining in Aspen through 2019. However, the X factor determining whether a fan visiting Aspen will have a great time watching amazing athletic feats versus spending time in jail and going to court will likely pivot on alcohol. Be safe out there. Be smart. Please drink in moderation. Otherwise you may be calling an Aspen lawyer like me to get you out of a criminal case.