Tag Archives: parenting

Bode Miller’s Custody Battle

The New York Times has a good article about Bode Miller’s recent custody battle. The case surveys a couple of issues – relocation of a parent and jurisdiction in Family Law – that will be covered in more detail in upcoming posts.

[Update on 12/1/2013: A New York court reversed course last week and ordered Miller to return his 9-month old son to the boy’s mother. There is an upcoming hearing on December 9.]

The Cost of a Divorce

Interesting article on the cost of divorce online at the Washington Times. According to the article, Avvo performed a survey of consumers and attorneys on the priority of concerns of those going through a divorce. The cost of divorce was #1.

As the author points out, it is nearly impossible to predict the cost of a divorce. An attorney has little control over the other party, the judge, or the opposing attorney. If children are involved, the cost of a divorce in Colorado is generally higher. Similarly, the costs rise dramatically when a parent wants to relocate, a party tries to hide assets or income, especially if they are self-employed, or the parties cannot be civilized and communicate on simple issues.

Each divorce is different. For those considering a divorce in Colorado, I suggest they at least consult with an attorney about their options before filing a petition and, especially, before signing a parenting plan or separation agreement. Most family law attorneys do not charge for initial consultations, and some offer unbundled legal services. Having a lawyer review a final agreement, or represent you for one hearing, is money well spent because it reduces the risk of issues coming up in the future. As in all walks of life, you get what you pay for.

Colorado Civil Union Act: Is there a difference between a civil union and marriage?

The Denver Post has a fairly extensive article covering the recently-passed “Colorado Civil Union Act” that’s headed for Governor Hickenlooper’s desk. As the Denver Post headline notes a civil union for a same-sex couple is different from marriage. That difference is non-existent for Colorado domestic-relations law.

The Civil Union Act provides that a civil union in Colorado will be treated essentially the same as marriage for purposes of a dissolution, separation or annulment. For example, a same-sex couple contemplating a civil union can enter into a pre-nuptial agreement. See C.R.S. 14-15-108. Colorado case law interpreting marital agreements will apply to agreements relating to civil unions. C.R.S. 14-2-307.5. And a divorce between same-sex couples will be treated the same as a dissolution of marriage of a man and woman in Colorado. See C.R.S. 14-10-106.5 & 14-15-115.

Nevertheless, we will have to wait and see whether the Colorado courts interpret the Civil Union Act differently for purposes of parenting rights, disposition of property, maintenance and the like. There will likely be some unintended consequences and wrinkles in the law that will crop up in the future.

The other interesting legal issues are noted below:

·         There’s a privilege for communications between same-sex partners. See C.R.S. 13-90-107.

·         Same-sex partners are now entitled to damages for wrongful death, emotional distress and other personal-injury claims. 

·         Probate and estate-planning aspects for civil unions are also treated fairly similar as a marriage between a man and woman.

·         A right to claim a homestead exemption or seek protection against attachment, execution and garnishment of property.

UPDATE (March 21): The Civil Union Act was signed into law today by Governor Hickenlooper.

Social Media and Family Law

I recently received a mass email from a friend announcing that her husband and her would be getting a divorce. She apologized for sending such a sensitive and personal message in a mass email, but wrote that it made things easier for her because she wouldn’t have to explain things over and over again. The NY Times has a good article supporting my friend’s method and suggesting a trend in people sharing both good and bad news through social media.

One of the first issues I deal with as a lawyer in a divorce or parenting-rights (child custody) dispute is social media. I advise my clients that they need to be careful about posting information on Facebook, Twitter, Google+ or the like because it may be used as evidence in the case. The best practice is to simply refrain from posting any public material at all. I recommend that people change their passwords for their online banking, email, Facebook, Twitter and any account that the adverse party may know about.

People also need to be mindful that their new boyfriend or girlfriend can provide fodder for the other side. Photos or status updates about fancy dinners, vacations or expensive gifts can lead to arguments over dissipation of marital assets. (Dissipation occurs when a party conceals, conveys or wastes marital assets during the dissolution proceeding or in anticipation of divorce.)

Going through a divorce is a dramatic and emotional experience. People seek support from their friends and family. It is becoming more common for people to seek that support via social media. The implications of someone’s seemingly innocuous status update on Facebook could be significant in a contested hearing over a parenting time/child custody, disposition of marital assets or amount of child support. There is a fine line between a person sharing news about what is happening, e.g. “I’m having a bad day,” versus why they think it is happening, e.g. “My husband doesn’t care about the kids.” Let’s use these two examples going forward to analyze whether there’s a difference in what happens as a result of those updates in a divorce.

The case law governing the discoverability of social media during litigation is evolving. The tentative rule across the country is that if a party posts relevant public information on social media, the opposing party can then obtain access to private information from that specific social media platform. There has yet to be a published Colorado case dealing with this issue. Curiously, Pennsylvania seems to be at the forefront of Facebook discoverability.

In the above scenario, a party in Pennsylvania posting a Facebook status update about “My husband doesn’t care about the kids,” may open the door for the opposing party to access private information such as direct messages to see what else that party may have written. See McMillen v. Hummingbird Speedway, Inc., Zimmerman v. Weise Markets, Inc. and Largent v. Reed. For more info on how Pennsylvania courts have dealt with this cutting-edge issue, see here. Courts in New York have also taken a keen interest in this issue. See Romano v. Steelcase Inc., N.Y.S.2d 650 (N.Y. Sup. Ct. 2010), Patterson v Turner Constr. Co., 88 A.D.3d 617 (2011).

In contrast, a status update such as “I’m having a bad day” would likely fail the relevancy test adopted by the courts in Pennsylvania and New York. See, e.g., Davids v. Novartis Pharm Corp. (E.D. NY 2012). Everyone has bad days. Such a general statement likely is too tenuous to justify disclosure of log-in and account info.

While there is no guarantee that a Colorado court would follow the rule being established in Pennsylvania and New York, a party embroiled in a divorce or parenting-rights dispute should certainly be wary of posting anything on Facebook, Twitter, Google+ or other forms of social media. A person also needs to take into consideration whether their attorney is familiar with social media as it can be a powerful tool in obtaining critical evidence to present to the court.

529 College Plans

Morningstar recently issued a report for 529 college savings plans, including two in Colorado that earned a “bronze medal.” These plans are great vehicles for parents to save money for their children’s post-secondary education costs. The number “529” is in reference to the applicable IRS tax code provision. For more info on 529 plans, see here.

Morningstar Ratings for College Savings Plans