Below, please find some Frequently Asked Questions pertaining to the information on this website.

Estate Planning:

First, you need to know what you have, and who you want to leave it to.  You need to consider if there are any conditions you want to impose with any of your bequests.  In Colorado, you can write your Will by hand, but be warned that many other states will not accept it. Your Will needs to be signed, and should have signatures of two witnesses. Though it can be done without an attorney, it should not be done without at least consulting an estate planning professional.  This will ensure that your Will meets all requirements and accomplishes your goals.

The short answer is that you can do anything legal with your belongings. You can leave them to friends, charities, or even your pets. You can restrict certain individuals in how, when, or under what circumstance they can receive their gift. Some common examples of restrictions include: “to my son, when he turns 35...”, “to my niece, only to be used for her secondary education costs...”, or “my car is to be sold, and the proceeds divided between my grandchildren....”. You can create a trust that starts after you die. You can leave notes to loved ones (i.e. “I know Susie wanted the china cabinet, but she has no space for it, and has decided to be a foreign missionary.  I love her dearly, but it would be a burden to her. I know Carrie will enjoy it and be able to care for it.” You can be sure anyone you want is included, such as step-children, friends, significant others, or even exes.

Ultimately, you will need to pick some kind of beneficiary.  However, it does not have to be family or friends.  You can leave it to your favorite charity, to a church, to a government, or even give someone else the power to make the final choice (also called a power of appointment). Just think about who you would like to have benefit from it.

Yes. You can either prepare a trust that starts before you die, or one that starts after you die. You name someone, a Trustee, to manage the assets. You leave instructions for the Trustee, which can include restrictions or guidance on how to manage the assets, and which will include instructions for how and when to give the assets to your children.

Yes, if you set up the plan before you need to apply for Medicaid. Medicaid presently can go  back over any transactions for the past 5 years, so you need to plan well in advance to get the most out of it. If you wait until it is time to apply, there is very little that can be done, though you can spend down more strategically.

Family:

You need to go through an Allocation of Parental Responsibilities (APR) case.  This essentially what we used to call a custody case.  You file a case with the Court, asking the Court to enter orders about decision making and parenting time for your children.

It covers major life decisions, such as deciding whether and where your child will receive religious training, deciding what school your child will attend, deciding what physician your child will see, making determinations on what optional medical treatment your child will receive, and deciding what activities your child will participate in.  It does NOT include day to day decisions, such as what the child will eat or wear, or how to discipline the child.

This is the ideal time to file a custody case. You can file your agreement at the same time and get the Court to adopt it as an order very quickly and without a fight.  Without a court order, either parent has equal right to have the child with him/her.  This means if the other parent takes the child and leaves the state, you cannot press kidnapping charges. Your remedies are limited to those in the family court.  If the child is removed from the state, after 6 months in the other state, that state’s court will have authority (jurisdiction) over the child, and Colorado will not.

No.  You can do it yourself, using the forms online. There are a few services that offer free classes to help you figure out the process and the forms. However, it may be advisable to get an attorney anyway, depending on your circumstances. If your case has issues that relate to another state, you need an attorney.  If you are not comfortable facing an attorney on the other side, or not comfortable speaking up for yourself in a courtroom, you need an attorney.  If forms confuse you, you need an attorney.  If there is a power imbalance between you and the other party (i.e. a history of domestic violence and/or physical or mental abuse) such that you have a hard time saying no, you definitely need an attorney.

No.  You can buy the full packet of forms from your local county courthouse for $20-25.  You can also download off of them for free (in either MSWord or PDF format) from www.courts.state.co.us/Forms/Index.cfm.

Yes. An attorney can enter her appearance for you after the case is already in progress.  Most attorneys will require that you contact them a minimum of 1 week before your next court date so that they have adequate time to get to know your case and prepare. If it is short notice, they may agree to represent you only if the court will continue (postpone) the court date.

No.  There is no benefit or loss to filing first.  The initial filing fee for the Petition is a little higher than the filing fee for the Respondent.  That is the only difference.

The Court has a form (jdf205) which can be filed, asking the Court to waive the filing fee for you based upon your lack of resources. It is a one page financial summary.  The Court will require you to include the incomes of any other people living in the same house who are more than roommates (i.e. family members, significant others, etc.).

Yes and no.  The Court will not hold it against you. However, it has a very practical implication for personal belongings.  It is nearly impossible to enforce an order requiring your ex to give you personal items from the house, so if it matters to you, take it with you when you move. It can have implications on parenting time if there are children involved (see next question).

If you do not take the children with you, either get a parenting time agreement in writing with your soon-to-be ex or at least keep a log (journal/diary) with dates and noting when you had contact with your children.  This will give you necessary evidence to rebut any allegation your soon-to-be ex might make that you ‘abandoned’ your children and so should have less parenting time.  If you keep the children away from the other parent, be sure you file promptly. If you take too long, the Court might interpret it as playing games, and being unable to put your children’s needs ahead of your own needs or fears. If you leave the children with someone other than the other parent for too long, you might give them the right to assert parenting time and/or decision making privileges.

Yes. There are mandatory financial disclosures, as well as an obligation to disclose anything of value that doesn’t fit the standard categories. If the other party fails to disclose items, you can file a request with the Court for a specific order for those items to be disclosed. If it was a gift to you, or an inheritance, you still have to disclose it. It will be separate property, but it may have some marital value too.  If the Court or your ex discovers that you failed to disclose an asset (maybe a 401k you opened and didn’t tell him about, a bank account, an inheritance), the Court can reopen your entire divorce case for up to 5 years from the date of your Decree.  This means that the Court can change the division of the assets and debts, as well as any support orders.  This is a very bad position to be in, as you will also have the Judge very mad at you for playing games.  You will be sharply penalized for a failure to disclose.

Child support is the right of the child, so you cannot waive it. However, in some circumstances, it is appropriate to agree to $0 child support. For example, if incomes are relatively equal, parenting time is relatively equal, or the parent with greater income is picking up more debts or expenses, it may make sense to agree to $0 child support. You have to be able to explain to the Judge why your child will not get the short end of the deal.

Maybe. Temporary maintenance is often relatively easy to get. There is a formula for calculating the amount; 40% of the higher gross monthly income - 50% of the lower gross monthly income. The Court has to determine that the lower income person has a need, and that the higher income person can afford it.  It is always a case by case basis.  Maintenance beyond permanent orders is harder to get. Regardless of what you have heard about  the “rules” for getting maintenance (married a certain number of years, so many $/month for each year you’ve been married, etc.), there are no firm rules in Colorado for maintenance beyond permanent orders. It is very subjective, and considers the factors named above, as well as what is fair and appropriate in each case.  If you do get maintenance, be aware that it will affect your child support. If you waive maintenance at permanent orders, you can never come back and ask for it in the future.

Probate:

Probate is the court process which oversees the transfer of property and payment of debts of someone who has died. In Colorado, we have some very simple processes for estates with very little value and for estates that have no real estate.  It can be a fairly simple process.  If there are heirs or beneficiaries who contest some aspect of the Will or if there is no Will, it can be a very tedious process.  The end result, through any version, is the payment of the debts owed by the deceased and the change of legal ownership of any remaining assets.

It can become costly if is likely that there will be some fighting.  It can be time consuming, as you have to fill out several papers for the Court, including such things as a detailed inventory of everything the person owned and a detailed list of every debt they owed. It can become a proceeding where assets are used up just taking care of(administering) the estate.

Yes. It can limit your liability as the personal representative, because everything you do is approved by the Court.  Also, it limits the time for creditors to come forward and  make claims against the estate.

Not necessarily, but you should consult one before deciding. There are no fixed rules of thumb to offer about when to get an attorney or not.  If it is a small estate, and can be done with an Affidavit, you probably will not need an attorney. If it is a simple estate and you are comfortable with forms and understand the instructions offered on the Judicial website, then you probably do not need an attorney.

Unbundled:

This type of services is essentially for answering short questions, consulting on issues, drafting documents, or reviewing documents. If you engage an attorney for this kind of service, the attorney will not file anything with the Court for you.  You may engage the attorney to assist with a phone call or conversation, but the attorney will not continue to receive correspondence or communication for you. Each time you come in, it is typically a separate fee and you are hiring the attorney to do something very specific. Common ways to use this service include: reviewing a contract or agreement before signing it, reviewing documents to be filed with the Court to be sure you understood it correctly and/or have it filled out correctly, drafting a letter to try to resolve a conflict outside of Court, consulting to discuss what legal options or remedies you may have in a particular circumstance, and preparing a document which you will later file with the Court.

Any time you hire an attorney, you hire them for a task. If you hire an attorney for your case, you are paying to have that attorney help you from the time she enters her appearance on your behalf through the end of the matter.  You can hire the attorney before a case is filed, for example to try sending a letter stating the resolution you want, or taking it to mediation to try to resolve it outside of Court.  You can hire the attorney at the point you are ready to file with the Court, or after you have filed the case, but before the Court has made rulings.  You can hire an attorney after a case to enforce the Court’s order. If you hire an attorney for unbundled services, it is just for one task. The attorney will not file anything with the Court, or tell anyone she is representing you.  The attorney will not handle ongoing communications or future documents.  The attorney helps you with the specific task you hired her for and then is done.  If you want the attorney to do more, you have to come back and hire her again, whether for another unbundled service, or to hire her outright to represent you.

The information contained in these pages is general in nature.

It does not constitute legal advice, and should not be used as a substitute for obtaining legal advice for your situation.