Denver Divorce lawyer

Divorce mediation – A Gentle Alternative to the divorce process

Divorce mediation – A Gentle Alternative

Divorce mediation often has several dimensions in addition to legal considerations which may include factors such as psychological, emotional, economic, and parental issues when children are involved. The adversarial nature of the divorce process often can be unfortunate and disruptive which negatively affects not only the individuals involved but also their friends, families, and communities.

While divorce in a conventional legal setting often generates conflict and competition, there is an alternative approach in Divorce Mediation. The process can be elevated to one of pursuit of justice, peace, harmony and perhaps even love for those in the midst of adversarial conflict. Ideally, mediation provides parties with a way to individually pursue fairness and justice. Parties can be honest in their search for fairness and justice, even in the midst of a contested divorce. They can choose to be civilized in dissolving their marriage and treat each other with respect and humanity to attempt to avoid destructive, hostile, and bitter consequences which may accompany a contested dissolution. Mediation can help couples move on with their individual lives and, when children are involved, promote a loving, secure relationship for them. Collaboration and mediation are effective even in the most complex cases, because they allow for creative problem-solving and informed decision-making. I the event there are issues which the parties simply cannot resolve after good faith efforts, they may elect to have the mediator resolve the decision in the capacity of an arbiter.

Ideally, an effective mediator will create a trusting environment that facilitates conversation and communication between divorcing spouses and encourages understanding and enlightenment to address the other spouses priorities, as well as their own, and undertake goals of shaping promising futures for each of the parties.

Mediation encourages the parties to focus on the future and not cast blame for the past. Animosity and distrust are replaced with open communication, cooperation, and collaboration in an informal and safe environment.

A mediation attorney acts as a facilitator who do not make decisions (unless also acting as an arbiter), but attempts to guide the parties to create empowered settlements. Unrestricted by the narrow parameters imposed by the law, mediating parties can utilize a flexible approach to forge a creative agreement tailored to their unique circumstances and needs. Research has shown that compliance and satisfaction with mediated agreements are far higher than when imposed by a third party, i.e., a judge or a magistrate. Many seasoned Denver divorce lawyers recognize the negative aspects of litigating divorce cases and will attempt to promote amicable settlements through efforts with a mediation attorney or a divorce attorney.

Mediation directs couples away from an adversarial and hostile process while concentrating on cooperation, communication, and the opportunity to alleviate potential problems which may arise after the entry of a decree. A potentially recalcitrant or confrontational spouse may be less likely to take an unreasonable posture in a collaborative environment where they may be actively engaged.

Ideally, mediation will create a process of conflict resolution which integrates justice by balancing views of fairness, peacefulness, and compassion. The adversarial legal process can lead to turmoil and conflict, which often increases as the case progresses. An effective mediator encourages the parties to pursue that which is fair and right in their eyes, beyond the letter of the law.

The goals of mediation are to encourage the parties to be stronger, wiser, more durable, and attempt meaningful resolution of their conflicts. With motivation and guidance, there is a way to avoid the turmoil of conflict, with all of its devastating consequences. Ideally, the process of mediation will provide divorcing couples with respect, dignity, and civility for themselves and for their families. Mutual settlement, rather than the strict application of formal law, is the ideal which attempts to create justice by allowing individuals to balance options to achieve overall fairness and perhaps harmony, dignity, compassion, and peace in the process.
Gary Gottesfeld may be reached via email at gary@nullgottesfeldlaw.com or at 303.892.7000.

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Does A Prenuptial Agreement Chill Romance?

There is probably nothing very romantic about discussing a prenuptial agreement prior to marriage. Often this is a very difficult subject to initiate. Deciding whether a pre-nup is right for you and your future spouse is a very personal decision and situations are unique. In discussing a pre-nup, spouses should focus on joint interests rather than their own particular needs, which will usually result in much more engaging conversations.

A prenuptial agreement is not about distrust, control or impending failure of the marriage, rather it is about planning and protecting finances for both parties.

Pre-nuptial agreements are not only necessary for only the rich and famous to protect their assets. Today many engaged couples consider a pre-nuptial before getting married. There are many reasons that a pre-nuptial is advisable, including a better and more predictable financial situation, protection of assets and in some circumstances, to help look out for children. Financial discussions with soon to be spouses can often be difficult and talking about how assets should be handled in case of divorce during what is supposedly a romantic time is awkward and therefore often not pursued.

If a couple does choose to plan for the future with a prenuptial agreement, each side should retain his or her own legal counsel. This insures that both sides are fairly represented in the financial agreement. Making the effort to create a prenuptial agreement can be beneficial for multiple reasons. In addition to potentially simplifying a divorce, it is also a way for a couple to have financial stability and not worry about what would happen in the event of a divorce. It helps couples plan financially prior to their marriage which often serves to create more security.

New Colorado Spousal Maintenance Alimony Law

Colorado’s new maintenance (alimony) law significantly changes the approach for awarding maintenance.

House Bill 1058 became law on May 10, 2013 providing a formula for determination of spousal maintenance.   Some individuals who believe that this law may adversely effect their case are filing their divorce case before the January 1, 2014 effective date.

The formula provides the amount of maintenance shall be determined by taking 40% of the higher income earner’s monthly income and subtracting 50% of the lower earner’s monthly income.  The duration of the maintenance award ranges from 31% of the duration of a marriage of three (3) years to 50% of a marriage of 20 years or more.  The formula is advisory only and the Court has wide discretion for deviation.

Inasmuch as the new alimony law goes into effect for cases filed on or after January 1, 2014 many individuals who are presently considering divorce may wish to file their case before January 1, 2014 if they believe they may have exposure for an award of spousal maintenance.  Presently, the Courts have wide discretion and there is no formula for permanent maintenance.

 The statute also requires that the Court consider the following factors in determining maintenance issues:

  1. The amount of each party’s gross income;
  2. The marital property apportioned to each party;
  3. The financial resources of each party including, but not limited to, the actual or potential income from separate or marital property; and,
  4. Reasonable financial need as established during the marriage.

The law was enacted in large part to provide more uniformity with regard to the award of maintenance and to address the perception of unfairness in the differential of awards and inability to predict outcomes.  A growing number of states have enacted similar legislation, which uses a formula in the same manner used to calculate child support.

Maintenance terminates upon death or remarriage but does not terminate upon non-marital cohabitation.

Gary Gottesfeld understands the tremendous importance and stress associated with financial matters and uses his knowledge and experience as a divorce attorney for 37 years to analyze your situation and develop maintenance solutions tailored to your specific needs.  Contact us today to schedule a free consultation at 303.892.7000 or gary@nullgottesfeldlaw.com.

Effects of Divorce on Children

Effects of Divorce on Children

Of course, divorce is almost always a difficult and stressful event for children. In most cases, children want their parents to stay together and the process of divorce can be emotionally devastating.

There are several things which parents can do to ease the effects of divorce on children:

  1. Encourage love and affection with the other parent. Children should not feel bad about having a loving relationship with the other parent and spending substantial time with them. Invariably, parties will parent differently which may prove frustrating, however, it is essential that parents attempt to parent collaboratively and accept different parenting approaches.
  2. Do not put children in the middle; it places children in a very difficult position when they are encouraged to choose sides. Keep children out of disputes between you and your spouse.
  3. Do not fight in front of the children. Fighting in front of the children simply serves to make them uneasy and insecure; all disagreements should be discussed outside of the children’s presence.
  4. Do not discuss the divorce case with the children or in front of them. It is highly inappropriate to discuss your case to or in the presence of the children. Generally this is an attempt to alienate the children from the other parent or to place them in the middle.
  5. Do not make negative comments about the other parent. It is very important that neither parent speak negatively to the children or in front of them. Children are a product of both parents and negative comments about the other parent diminishes the children’s own self worth. Courts will generally enter orders that the parent not disparage the other parent to the children or in front of the children.
  6. Getting along at children’s events. It is quite embarrassing and distressing for children’s parents to fight while attending children’s activities or events. At a minimum be civil and appropriate when communicating with the other parent at children’s events.
  7. Refrain from utilizing children as messengers. Communication should be directly between both parents. Children should not be used as intermediaries or messengers. This is very inappropriate and irresponsible. Children should not be involved in parent’s disputes, either directly or indirectly. Children involved in family law matters are not spies. Do not request that children inform about the other parent’s activities or circumstances or speak with them about the divorce, legal separation custody  or allocation of parental responsibilities matters. This is very inappropriate and again puts children in the middle. Children need to be isolated from the ill effects of the divorce process and the deterioration of the parties’ relationship. Spying is inappropriate and puts children in the middle.

Domestic Partnerships – Civil Unions

Domestic Partnerships – A new era of rights and responsibilities for the gay and lesbian community began March 21, 2013 after the Colorado Civil Union Act was signed into law recognizing same sex domestic partnerships.  In Colorado, same sex marriages are still banned by Amendment 43, however he Colorado Civil Union Act signed by Governor Hickenlooper restores many of the rights that heterosexual married couples enjoy.

Civil unions will provide a State recognized relationship coverindomestic partnershipsg many legal protections including issues relating to health care, family law, probate and other areas in Domestic Partnerships.

In most respects, the new civil union laws treat civil union-partners like married persons.  The Colorado Civil Union Act provides:

A party to a civil union has the rights, benefits, protections, duties, obligations, responsibilities, and other incidents under law as are granted to or opposed upon spouses.

Ironically, one of the benefits of the new law is that it establishes the framework for termination the civil union.  Generally, a civil union can be dissolved with the same types of provisions under Colorado law in which married couples would divorce, including splitting assets, best interest of children and possible maintenance (alimony) awards.  For the most part, all laws that relate to dissolution of marriage and child custody are now applied to civil unions as well.

The property of a LGBT couple who have entered into a civil union can now be divided by the couple or by the Courts.  Couples who enter into a civil union are under parallel laws to those of married heterosexual couples.

The Colorado Civil Union Act provides inheritance rights for couples and will be treated the same as a spouse under the inheritance laws of the State.

Civil unions also grant property rights such as the ability to pass on a homestead exemption to a partner.

Colorado will join with eight states that have civil unions or similar laws. Nine other states and the District of Columbia allow gay marriage.

New Perspectives

I have now been practicing law for almost 35 years and it is hard to believe how fast the years have flown by.  I have recently attempted to change my approach to the practice a bit.  I have always been driven to build a successful practice and accomplish my client’s goals, but I have recently concluded that I may not have considered some important considerations.  As a lawyer and small business owner, I have set my sights on being busy and building what I thought was the ideal practice, but in some respects I was leaving out a crucial aspect.  While my intentions were good, my idea of what I should be building was not entirely correct.

After 35 years, it became apparent to me that merely focusing on an end result was neither ideal for me nor my clients.

Throughout the years I have been very happy with my practice and my amazing clients, but I have realized that I was not taking time to view the whole picture for them.  Ronald Dworkin an American legal scholar observed that the law must be predicated and interpreted consistent with communal moral principals such as justice and fairness.  While his theory was more focused on judicial decisions, it has become apparent to me that similar considerations are important for attorneys to weight with their clients rather than the more limited approach of achieving certain objectives.

Of course, attempting to put my client’s case in perspective will vary from client to client.  Principals such as justice and fairness may be important to some while others may gain additional comfort and benefit from various other aspects including personal priorities such as peace of mind.

As the years have passed, many clients, as well as good friends of mine, have experienced many problems including both health and emotional.  This, in part, has helped put in perspective what I’ve known, but not acted upon, which is the need to realign the focus of my practice for both my client’s benefit and for my benefit as well.

My practice has been more focused on the end point of a case rather than giving more focus to my client as a whole person.  I’ve began to reassess what I really wanted to do with my practice and how I could enliven and reinvigorate it to encompass more than end results.  I wanted to really look at what would make clients happy and those things which would not.  I have now prioritized my time looking at how I can improve my approach to each client.

As a result, I’ve incorporated some small changes as well as some major changes in the manner that I practiced law and have never looked back.  The effort to focus on the whole client has not only resulted in small changes in the manner which I deal with my clients, but has also served to provide me with a better perspective on myself.  An unintended result is that I found that I now take better care of myself, take more time to relax, and appreciate the simple things around me and as a result of this re-evaluation of my practice, I now have resolved to provide more focus on the entire client rather than solely on legal strategies and outcomes.

I would most appreciate the help of any who have been through the legal process.  I know the law and I know how to advocate for a client, but I need to know what is most important in the process of a legal case and what motivates the client.  I want to address the optimal well-being in my clients and ask what would help them more effectively as they proceed through the maze of a legal proceeding.  My goal is not simply to win a case but how to help clients going through such a difficult process.  I would appreciate suggestions on what qualities and attributes you would want to see in an attorney as you go through a legal process which goes beyond outcome based thinking and examines the more effective manner that law is practiced by me with my clients.

Thank you for taking the time to read this.  I look forward to any suggestions or responses which you may have. 

Postnuptial Agreement

Postnuptial agreement Postnuptial Agreements

Although your marriage or civil union may have taken place years ago, it is not too late to outline the financial terms and arrangements between you and your spouse.

Postnuptial agreement, the validity of which is recognized in Colorado, are often essentially prenuptial agreements made after the marriage takes place. Postnuptial agreements are gaining increasing interest. These agreements assist spouses in defining financial arrangements which may have changed during the course of the marriage. Sometimes, couples may be attempting to outline the terms of a divorce which may be approaching, while other times couples in very solid and happy marriage wish to make financial arrangements based on current circumstances. Often, agreements are predicated on one or more spouses wanting financial certainty and independence.  These are generally agreements that attempt to affect rights in a future divorce or legal separation, and common provisions include limiting or waiving spousal maintenance (alimony), the division of marital property, which includes property obtained before and after the marriage and provisions regarding inheritance.

A postnuptial agreement is enforceable under Colorado law and should not be entered into lightly. It is usually a good idea for both spouses to have Colorado attorneys and often the input of a financial advisor or accountant is very helpful.  A postnuptial agreement, however, may be difficult to invalidate so it is wise for couples to make sure that they are committed to the agreement that they have entered into.

Cohabitation Laws in Colorado

cohabitationProperty rights regarding cohabitation are not specifically defined in Colorado as they are in Colorado divorce cases, thereby relegating parties to traditional civil remedies.   Such remedies are not specifically designed to address property jointly acquired during cohabitation. It may therefore quite helpful for partners to enter into written cohabitation agreements.

While the Civil Unions have become law in Colorado, those who do not enter into a a civil union may still wish to address some legal aspects of their relationship.  Some possibilities to consider include:

  • Cohabitation agreements
  • Domestic partnership agreements
  • Allocation of parental responsibilities between same sex partners
  • Colorado’s designated beneficiary
  • Getting married in one of the six states allowing for same sex marriage or the District of Columbia or in another country that allows for same sex marriage
  • Protecting children through a second parent adoption