Colorado

Part of Real World Divorce: web edition | Kindle edition

We interviewed three top litigators to learn about Colorado law and customs and, as with Illinois, to make sure that there weren't going to be drastic differences from attorney to attorney. All three are in the Greater Denver metropolitan area.

Cynthia L. Ciancio is a "Super Lawyer" who is the Managing Director and co-founder of Ciancio Ciancio Brown, P.C. She graduated from the University of Denver Sturm College of Law in 1995 and now teaches continuing education classes for other family law attorneys through the Colorado Bar Association.  Ciancio handles a "fairly equal" mixture of male and female clients but lately more men. She goes to trial 10-15 times per year for an average of 1-3 days per trial. See http://www.colo-law.com/ for a full biography.

John Eckelberry has been practicing since 1998 and does a somewhat wider variety of work than most divorce litigators. His status as a "Super Lawyer" is not surprising given that he is a second-generation family lawyer: "My dad did it for 40 years."  Eckelberry is passionate about improving access to the court system for people of moderate means and thus does a fair amount of "limited representation" for his clients, who are roughly balanced between men and women. See http://eckelberrylaw.com/about/ for more biographical information.

Ann Gushurst has been a "Super Lawyer" since 2007 and a partner at Gutterman Griffiths since 2005. For twenty years she has been handling a roughly 50/50 mix of male and female clients. She is a specialist in collaborative divorce as well as intensive litigation. How are those consistent? "People who who have a lot of money fall into two categories: (1) crazy, or (2) let's do this thoughtfully and also avoid public exposure." She goes to trial at least once per month (viz., there are plenty of crazy folks out there!). See www.ggfamilylaw.com for a biography.

The person who starts a divorce lawsuit in Colorado, a "plaintiff" in other states, is a "petitioner" while the defendant becomes a "respondent." The system seems to be much friendlier to laypeople than courts in the East. Eckelberry says "Remember that two-thirds of Colorado cases have no attorneys at all and 75 percent have one or fewer."

The time from lawsuit filing to trial ("permanent orders hearing") varies by county. It can be as short as 3 months or as long as 18 months. As in other states, a custody case can be won or lost at a quick hearing on temporary or "interim" orders. "A good award at temporary orders can set the tone for the rest of the case," said Eckelberry. If a parent wins custody on a temporary basis does that pretty much guarantee victory at the trial? "Judges are human and are less likely to make changes from temporary orders to permanent orders," responded Eckelberry. "It is rare to see a big change from the temporary order to the permanent order." The "interim orders stage occurs at the Initial Status Conference, which is not an evidentiary hearing, and is typically within 45 days after a lawsuit is filed. "Oftentimes a party can get a parenting time plan, spousal support, child support, and use of the house at the interim orders stage," says Eckelberry. "It's scary, especially for a pro se respondent."

Depending on the county, litigants may not know who the judge will be until six months before a trial or even the day of a trial. Given that the attorneys we interviewed say that much depends on a judge's personal disposition, this keeps litigants guessing more than in some other states. Unlike some other western states, Colorado does not allow a litigant one automatic chance to request a different judge.

The Colorado system helps litigating spouses to keep litigating even after one has run out of money. "Any highly disputed case through trial can cost $50-150,000 per person in fees," said Ciancio, "but our laws help the financially disadvantaged spouse have an equal footing in litigation. Fees are awarded early on and throughout the case." (Though of course the lawsuit will have to end if both spouses run out of cash.)

What if they have enough left over for an appeal? "Abuse of discretion appeals are virtually impossible to win," said Eckelberry, "and even a victory at the appeals court level may have no practical value." What's an example of that? "Look at In re the marriage of Ciesluk (2005). Six months after the divorce, Mom wanted to relocate to Arizona. The trial court said no. She appealed and the Court of Appeals upheld. She went up to the Colorado Supreme Court." Did she win there? "Yes and no," said Eckelberry. "The Supreme Court ruled that the judge erred as a matter of law because he did not appropriately apply all of the statutory factors for relocation and essentially gave a presumption that the child's best interest was not to relocate. They remanded the case back to the same judge. He went through each factor the way that the Supreme Court told him to." What was the decision? "The same as before, i.e., the child should remain in Colorado." Did the Mom finally move with the boy? "No," responded Eckelberry, "Mom never moved. She withdrew her motion to relocate immediately after the Judge made his decision that the child should stay in Colorado.  In fact the parenting plan stayed the same, with Mother remaining the primary parent in Colorado." How much did the lawyers get paid so that the parents and child could stay exactly where they'd been? "I don’t know, as much of the appellate work was done pro bono, but at least $100,000 per side," said Eckelberry.

Child support in Colorado presumptively ends at age 19 and courts cannot order a parent to pay for college. Can a custodial parent continue to profit from a child who is in college starting at age 17 or 18? "No," said Eckelberry. "If a child isn't living with the parent, the parent is not entitled to the support payment. If the child is in college and over 18 the checks would go directly to the child." (A commercial litigator in Colorado told us "Child support checks can also go directly to a child if the loser parent has not paid the winner parent in full when the child turns 18. The child can sue the loser parent seeking direct payment of back child support.") Child support can be extended in the event that a child is disabled.

The child support guidelines in Colorado go up to a combined annual income of $360,000 per year. At that level, child support is $30,420 per year for a single child. This makes child support in Colorado substantially more lucrative than in nearby Nevada (capped at $13,000 per year) but less lucrative than in Massachusetts (about $52,100 per year) or Wisconsin (up to $61,200 per year). Looking at the numbers near the top of the table, Colorado is computing child support using an 8% multiplier on gross income (compare to a range of 2.6-17 percent in other states). If the parents earn more than a combined $360,000 per year can a larger amount of child support be ordered? "It is discretionary with the court to deviate or extrapolate," says Eckelberry. "A judge would have to make specific findings if extrapolating but my experience is that judges don't extrapolate or deviate. They are capping it at the top of the table. I have seen cases with sports stars where the order is above the top of the table but that is usually linked to a specific expense such as private school."

"Extraordinary medical expenses, private school, travel expenses, and daycare are paid by proportion of income," Eckelberry. "If they are recurring monthly expenses they can be included in the child support worksheet to adjust the monthly support obligation." Note that if one parent has substantially all of the income he or she will be ordered to pay for substantially 100 percent of these expenses on top of the basic support obligation from the table.

Child support revenue in Colorado is less secure than in other states. "It is not too hard to try to modify a parenting time schedule," said Ciancio. "The rule is that you can't come back within two years of a previous order." Colorado uses a "best interest of the child" standard for these modifications, not the "substantial and material change" standard that protects victorious parents in some other states. When does the child get a voice? "Starting at age 12 or 13," said Gushurst, "though judges do not like interviewing children." Eckelberry notes that he "rarely sees children under 16 having any influence [on a parenting time dispute]." Whether due to a parent's or child's initiative, if the new schedule involves more than 93 nights per year with the secondary parent, the primary parent's child support profits may be reduced. "If we didn't tie child support to the number of overnights people wouldn't fight as much for sole custody," said Ciancio. With Colorado support numbers being somewhat lower than in states such as Massachusetts or Wisconsin, do people really fight that hard? "Some of the biggest and most contentious cases that I've seen have been over a few hundred dollars," responded Ciancio.

Unlike neighboring Arizona, where alimony is entirely subject to judicial discretion and therefore the subject of intensive litigation, Eckelberry told us that "Colorado just implemented a guideline formula for spousal support. Certain groups, including the Family Law Section of the Colorado Bar Association, fought it but it is working reasonably well." Ciancio said "I was involved with the maintenance formula and family lawyers opposed it because we thought it would lead to some inequitable results. Supporters generally cited the fact that there was more inequity from courtroom to courtroom. On balance the formula has been helping to settle cases."

On the other hand, where Arizona now has a formulaic 50/50 custody outcome, Colorado leaves that up to judicial discretion. "The current percentage of 50/50 awards after trial are maybe 1 in 3," said Eckelberry. Is that because Colorado is using a "historical primary caregiver standard"? No, said Eckelberry, "The status quo is only the standard for temporary orders. When issuing permanent orders a judge is supposed to look at what is best for the long-term." I.e., Colorado is a "craft a new optimum" state. "Judges do try to make the change gradual from what prevailed during the marriage," Eckelberry noted, "So there might be a rehabilitative transition into a new non-married life. That may involve a different split of child care responsibilities than during the marriage."

What drives the fight over 50/50 parenting in Colorado? "The two major psychological hurdles that I see," says Eckelberry, "are that women who were the primary parent during the marriage tend to see the father as incompetent while men who believe that they were good dads think that therefore they're entitled to 50/50." How can a litigant block an award of 50/50 custody? "Generating conflict with the co-parent is an often used tactic," said Eckelberry. Does he therefore support an Arizona-style system where it will tend to be 50/50 unless the parents agree on an alternative? "I would favor tighter rules and more direction for judges, but a 50/50 presumption for all cases is a bad idea, especially high conflict cases. Every case is different. Every child is different. To create a presumption you're trying to standardize too much." Gushurst offered a different perspective: "A 50/50 presumption stops the litigation."

All of our interviewees agreed that domestic violence is a common theme when people are trying to get a house, the children, and the cash. "Certainly in contested cases there is almost always an allegation that somebody is abusive," said Ciancio, "though only very seldom is the abuse provable even to the 51-percent standard." Are there any penalties for making false allegations? "You can get at least one free abuse allegation if you work through a pediatrician, therapist, or other mandatory reporter," said Ciancio. "I see some type of abuse or domestic abuse allegation in 3 out of 4 cases that are filed," said Eckelberry. "Most people alleging abuse back off before trial, but it is an effective tactic. There are attorneys who in every case they file will also file a domestic abuse protection order." Gushurst pointed out that it is ironic that people file custody lawsuits supposedly because they are so passionate about protecting a child from abuse: "The most damaging aspect of divorce is the litigated conflict. Psychologists have found that it is even more damaging than sexual abuse."

As in other states, appeals are of little practical value even if you do manage to get over the towering "abuse of discretion" bar. "You just end up back in front of the same judge," said Gushurst.

Colorado adopted the Uniform Premarital Act in 2013 and it governs agreements entered into after July 1, 2014. Eckelberry says that a "walk-away" premarital agreement that waives alimony should be enforceable in Colorado as long as it is not unconscionable when applied, e.g., "if there has been a change of circumstances, such as disability or staying home to take care of children."

State background

The average hourly wage in Colorado is $23.13 per hour. A person who goes to college at Colorado State University will spend approximately $80,208 over four years to earn a bachelor's degree. Census 2014 data show that median income for a 22-36-year-old college-educated woman working full time is $41,600 per year in Colorado or $31,764 after taxes. For a corresponding man it is $45,000 per year or $34,112 after taxes. Colorado collects 8.9 percent of residents' incomes in state and local taxes, below the national average of 9.9 percent (source: Tax Foundation). Colorado consistently ranks among the top 10 states in terms of residents' happiness.

The average annual cost of child care is $12,621 for an infant, $9239 for a four-year-old, and $4877 for a school-age child. Thus the total cost of child care from age 0 through 12 is $63,201 in commercial settings or $49,536 in a family care setting.

For a man who goes to college and then works for 15 years, his total after-tax income would be approximately $431,472. After considering the USDA-estimated costs of a child, he would hvae a higher personal spending power by collecting child support when that support is $2,642 per month or more. This is slightly above the top of the child support guidelines. With two children from two different mothers, however, he could have an after-tax spending power larger than from going to college and work if each mother paid $1,655 per month, which is possible when each mother earns $196,800 per year.

The female college graduate will have an after-tax spending power of $396,252 over the same time period. She would be better off collecting child support when that exceeds $2,488 per month, i.e., just under the top of the guidelines. This would require finding a father earning $360,000 per year. If she is suing two fathers, however, she is financially better off compared to the college/work case when she can get $1,620 per month from each one. This should be possible within the guidelines if each defendant earns roughly $186,000 per year before taxes.

Census 2014 data show that 86 percent of Coloradans collecting child support are women.

The Scenarios

Scenario 1: Professional Wife and Slacker Husband

A 35-year-old female hand surgeon earning $325,000 per year marries a 33-year-old photographer. She sets up her husband with a photo studio and $100,000 of equipment, but he works just a few hours per week. They have a one-year-old child who is cared for by a nanny. The father is often home with the baby and nanny, but he spends most of his at-home time watching TV and surfing the Internet, leaving the child-rearing chores to the nanny. With the mom at work and/or taking care of the baby, the dad begins an affair with a young fashion model. After two years of marriage, the mom sues for divorce, custody, and child support.

Eckelberry says that "it is rare to see a court order sole decision-making and if a judge does order sole it will often be split up, for example with mom on medical and dad on education." Generally Colorado courts award what other states call "joint legal custody" though Eckelberry says "the main issue is parenting time and the day-to-day decisions that come with actual parenting time."

What do our interviewees think the schedule would be?

Ciancio: "It is more difficult to get 50/50 parenting with a young baby but the father would have a really good shot coming back when the child is 5 or 6 years old. Courts really like to see both parents having a lot of involvement." Who would get to be the primary parent initially, if one is to be designated? "There is still a lot of sexism, though I hate to use the word. Let's call it 'traditionalism". A mom staying home with a nanny gets more credit than a dad staying home with a nanny, though remember that we have hundreds of judges across the state. They are aged 30 to 60. Some have kids, some don't. It is difficult to give an answer because it is very dependent on the judge and his or her personal biases, though some new judges have a philosophy that children should have equal time with their parents unless a litigant can show some reason why they shouldn't."

Eckelberry: "The nanny is the primary care provider here during the day so the court will look at who has been getting up at night. If mom is breastfeeding and getting up at night then she is the primary caregiver. It will go better for the dad if he says 'I haven't been involved but I want to be involved' than if he tries to maintain that he has been the primary caregiver. A court might look at an equal schedule because the father is more available. The court may try to create stability by keeping the nanny involved." Would the likely outcome vary from judge to judge? "I've seen completely different results even with the same judge on different days."

Gushurst: "Right now I have more cases where the woman is earning more money than the man than vice versa. The last economic downturn hit men harder. I have a couple of cases that are almost identical to this. The woman would marry someone hastily because she was getting older and wanted to have a child." What has been happening in those cases? "In the actual case with a one-year-old child and a nanny the judge has ordered that the nanny go to the father's house." Will a primary parent be designated? "If she can show that he hasn't done hands-on child care it will be the mom who will become primary."

Will the judge make a custody decision after hearing witnesses or rely on a third party's investigation and report? "Typically before you go to trial on a custody dispute there has been a professional appointed in the case," says Ciancio. "The two main kinds are child and family investigators and parental responsibility evaluators. CFIs are limited. They can't charge more than $2,000 and do a cursory review of the family. PREs get more involved and might do psychological testing, home visits, and interviews beyond the immediate family." Echoing the comments of research psychologists, Gushurst pointed out that custody evaluators were no less likely to make decisions based on personal biases and inclinations than judges.

Eckelberry noted that "child and family investigators were hired in 90% of disputes. The average cost just kept going up to do this basic investigation. Reports grew to 40-50 pages long. A typical conclusion was "each of these parties have tendencies toward behavioral issues but they don't have any diagnosable mental health issues". This created the "good enough parent" result after more than $20,000 was spent. In 2010 there was a directive from the Chief Justice  limiting them to $2,000." Did that cut costs for litigations? "No," said Eckelberry. "Everyone then shifted to getting parental responsibility evaluations." Does it work out better for children to have these professionals involved? "There has been no change to the basic philosophy for custody decisions," responded Eckelberry. "It has created a cottage industry for mental health professionals that hasn't translated into results that are better for children. Investigations put a lot of stress on children and parents, and generally having an investigation increases conflict between the parents." Why are these investigations so popular then? "They've become the norm because lawyers and judges all want to pass the buck."

What are the child support stakes? "The court will impute to him $2,000 per month in income," says Gushurst, "but he still gets child support even if he takes care of the child only 35 percent of the nights. It will be about $1,500 per month, not very different from the $1,720 per month he would get at 50/50 parenting." What if he could get sole physical custody? "If he is determined the primary parent, the Court could not impute income to him until the child turned 30 months.  Without any spousal maintenance, she would pay him $27,636 per year," says Eckelberry. If she got sole custody? "Without any imputation of income, he would pay her $50 per month." So during the next 18 years the mom can gain over $382,000, tax-free, if she can move from 50/50 to sole custody. The dad, on the other hand, has the potential to be more than $500,000 better off if he can gain sole custody compared to if the mother wins and the child is with him every other weekend.

What kind of alimony can the father hope to get? "The court might give him 1 year of maintenance or extra assets because she committed to helping him start a business," says Ciancio, "but he may not get any maintenance because the new statutory guidelines start after three years of marriage." Eckelberry predicted no spousal maintenance for the father after the temporary orders period while Gushurst thought that he might get six months and added that judges were not necessarily following the new guidelines.

What about a property division? "The court will look at what was acquired during the marriage and try to divide it 50/50," said Eckelberry. Can he get a larger split based on his lower earning potential? "He might be able to push it to 60/40 but beyond that is a surprising result."

What will this case cost to try? Gushurst noted that a custody evaluation alone can cost over $20,000 and that through permanent orders (the final trial) the fees on each side could be as high as $100,000. Why so much less than in states such as Massachusetts? "In all of my years of practice I have only ever had one trial that lasted more than two days," responded Gushurst. "We don't give priority to domestic relations in this state." Will she be ordered to pay his legal fees? "She will pay the mortgage and other expenses during the lawsuit," said Eckelberry, "so he will pay for legal costs out of his temporary maintenance. It is unusual to see awards of attorneys fees unless a party is found to be driving up the costs."

How about the husband's affair with the fashion model? "Doesn't matter unless he is having sex in front of the child," says Gushurst. "Judges do look at the actions of the parties," says Eckelberry. "They'll beat up on someone if they don't like them. An affair is irrelevant by law but it might be helpful if the wife can somehow get it into evidence that he is having an affair and wasting time that could otherwise have been spent with the child." Ciancio noted that "It is very difficult to get information into evidence about why someone is asking for a divorce or why the marriage ended. Thus it is very likely that the affair doesn't come in."

Scenario 2: 14-year marriage of equals

A 22-year-old woman marries her 22-year-old college sweetheart. After 14 years of marriage, they have four children, ages 3, 7, 9, 13. Both parents are public school teachers earning approximately $65,000 per year.  They have shared child care duties roughly equally over the years. Now they can't stand to be in the same room together. He accuses her of having an affair. She accuses him of being verbally and emotionally abusive to her, but not to the kids. After a stormy argument in the kitchen, he moves in with a friend and she files for divorce, requesting sole custody and child support. The father answers the Complaint by requesting sole custody, but no child support. Both parents agree that the marital assets can be split 50/50. Both parents prefer as little post-divorce contact with the other as possible.

Ciancio: "The judge would appoint a CFI or PRE to learn the wishes of the children. Assuming that the children showed adaptability, the parenting schedule would likely be 50/50.”

Eckelberry: "It is complicated by the fact that there are kids in three different age groups here. Even if there were an equal parenting arrangement, the three-year-old probably couldn't handle week-on, week-off. There might be a 5-2-2-5 schedule if equal parenting were awarded." Does he expect that? "It depends on the judge and the house situation. If mom is going to stay in the marital residence and the children have lived there most or all of their life than that will be a stabilizing factor. If dad moves 30 minutes away he has created serious problems for himself having an equal schedule, or even a 60/40 schedule. If he lives close by then he may get every Thursday and every other Thursday-Monday (5/14). They'll split holidays and vacations." What about the summer schedule? "The closer it gets to equal the less likely a judge is to make a different summer schedule."

Gushurst: "Without some serious evidence of abuse, I would expect a 50/50 schedule with 5-2-2-5 due to the three-year-old transitioning to a week-on, week-off when the youngest child is 5."

How does the abuse allegation get resolved? "We had a piece of legislation come in last summer [2013]," said Eckelberry. "And abuse of a former spouse is now one of the factors to determine the best interests of the children. If the court finds evidence of abuse, neglect, or other domestic violence issues then the court has to apply certain factors as to parenting time and decision-making." Is it a "clear and convincing" evidence standard that can be tough to meet? "No," said Eckelberry. "Just a 51-percent preponderance of evidence or 'flip a coin' standard. The law was pushed by victims' advocate and [unsuccessfully] opposed by the family law section of the bar association. As in Alaska there has been a large increase in the percentage of cases with abuse allegations. It is up to about 75 percent of all cases in my practice."

What are the cash stakes involved? With a 50/50 schedule, due to the equal incomes there would be no child support. According to Eckelberry, at 92 or fewer overnights, the winner parent would collect $1,312 per month from the loser ($251,904 over 18 years), at 93 overnights it would be $965 per month, and at 142 overnights (the predicted 5/12 schedule with vacations), it would be $437 per month. Will these differences in revenue affect litigation and settlement strategy? "Sadly," says Eckelberry. "I wish that people would focus on parenting plans based on how it will impact their kids, but it is amazing to me how many people talk about parenting plans in terms of percentages and the number of overnights. I would expect her to fight hard to keep it under 93 overnights."

Scenario 3: 10-year marriage with kids 2 and 5

An 18-year-old woman marries a medical resident. She spends the first four years of the marriage as a college undergraduate, earning a bachelor's degree, and then becomes a stay-at-home mother to two children. She files for divorce after 10 years of marriage. The kids are 5 and 2 years old at the time the divorce commences. The plaintiff does not allege any misdeeds on the part of the father, only that they drifted apart in the time that she aged from 18 to 28. The mother has very obviously been the primary caregiver. The father has now completed his medical training and is earning $275,000 per year. The family has home equity of $300,000 and additional savings of $200,000.

Ciancio: "The custody outcome is very judge-dependent but this is one of those classic cases where she clearly was a stay-at-home parent while he built a career. She most likely will be the primary parent." What if he is asking for equal parenting? "He has little to no chance of getting 50/50. The children will be with him every other weekend either Friday to Sunday or Friday to Monday morning plus one night during the week for dinner or an overnight." What about the summer? "Sometimes judges will give more summer time to non-custodial parent, but more typically try to keep consistent schedule all year round. Only 7 consecutive days of vacation with these young kids.

Eckelberry: "I doubt that an equal schedule will come out of this even if dad is pushing for it. Probably Thursday and every other Thursday-Monday. This is one where I see more post-decree [schedule modification] cases. Dad is remarried within a year. The new wife wants to help take care of the children. Dad moves for 50/50 parenting because he now has more adults in the home. The [primary] Mom says 'over my dead body I'm going to let your new wife take care of my kids.'" How does that schedule modification case get resolved by a court? "It is just like a case my old partner worked on. Even if the father is at work and the children of the first marriage will be with the first wife some of the time, it doesn't hurt him. A parent can delegate his or her parenting time to a third party and it is presumed to be in the best interest of the children. If there is a new sibling it is more likely than not that a court will go to an equal schedule."

Gushurst: "I expect to see 5/14 overnights for the father. Probably what the court would do is give him 50/50 parenting on a modification motion 2 years later." Does it make sense to do it that way instead of at the first divorce trial? "Trying to figure things out in the first go-around, right when the parties are splitting up and figuring out where they're going to live and what their new life is going to look like doesn't make sense, though frequently an initial parenting time order includes a ramp-up to a more equal schedule."

What kind of cash does the mother get? Eckelberry explains that alimony is calculated before child support. "The guideline for spousal support is 40 percent of the gross monthly income of the higher earner minus 50 percent of lower earner's income, but that the combined income of the lower earner cannot be more than 40 percent of the total income of both parties. With her income at zero, she would get $9,167 per month. The guideline duration is 4 years and 6 months." How strictly do judges follow the new guidelines? "A court must consider the guideline but need not follow it," responded Eckelberry. "However, what I am seeing across the board right now is judges following the guidelines as they apply to the amount pretty closely, but not necessarily the duration." In addition to the $9,167 per month ($110,004 per year), assuming no imputation of income, the mother receives $28,572 per year in tax-free child support that ramps up to $47,628 per year after her alimony runs out. Note that the larger number is roughly comparable to after-tax median household income in Colorado and six times what Colorado would pay a foster parent of two children.

Ciancio concurred that the mother would receive the guideline alimony duration of 4.5 years or 45 percent of the length of the marriage (compare to 70 percent under the Massachusetts guidelines if the wife had waited until 10 years and 1 day before suing).

Gushurst thought that the wife could get 5.5 years of maintenance based on the fact that the youngest child has not reached age 2.5, which is when Colorado expects parents to start working.

What if the father wants to cut back on work to be more engaged in 50/50 parenting, resulting in a reduction in income from $275,000 to $225,000. "A judge will say that he can earn whatever he wants but he is capable of earning $275,000," Gushurst responded. "So if the father cuts back to be a 50/50 parent he will still pay at the $275,000 level."

The starting point for property division is a simple 50/50 split but Eckelberry noted that "There can be an unequal division of the property to try to keep her in the house. Judges try to use property so that they remove or reduce maintenance obligations. A judge could give her the house and then divide the savings."

Scenario 4: 1.75-year marriage with 8-month-old child

A 25-year-old woman marries a 40-year-old never-married medical doctor earning $275,000 per year. She had been earning $50,000 per year working as a receptionist in a medical office. She has a child after a year of marriage, quitting her job during the 7th month of pregnancy due to fatigue. She files for divorce when the child is 8 months old (after 1.75 years of marriage), alleging that the father did not participate in the infant's care, e.g., he did not change diapers or get up in the middle of the night to soothe the baby. The mother will allege that the father was verbally demanding and abusive, though there won't be any witnesses to corroborate. The father had savings of $2 million that he accumulated prior to the marriage but there was no significant accumulation of assets during the less-than-two-year marriage. The mother seeks a division of assets as well as alimony.

Ciancio: "She will still most likely be the primary parent because she has been home since the child's birth, despite the fact that it has been a short time. She is the woman and that is a factor here. There is a special rule in Colorado that parents who are caring for a child under 30 months old are not required to work. On that basis she could potentially get either the house or maintenance to continue the marital lifestyle through the child reaching 30 months of age. The court has a lot of discretion to do whatever is equitable. She might get an above-guideline child support award, for example, so that she is not forced into the workforce prior to the child reaching the age of 30 months."

Eckelberry: "We used to have the 'tender years' doctrine in Colorado, which was presumptive for the mother. Although the doctrine no longer exists today, a similar concept exists for whoever was the 'primary attachment parent'. The implication of this concept is that a child should have frequent visits but no overnights. with the secondary parent." At what age would overnights start? "18-24 months." Is this psychological theory something that everyone agrees on in Colorado? "No," responded Eckelberry. "Bonding theory is in opposition to this and awards from judges are all over the place. For example, I represented a dad who had been the stay-at-home parent and he didn't get any overnights for 9 months due to allegations of unfitness."

Gushurst concurred with the above predictions on custody and estimated that the mother could get approximately $13,000 per month ($156,000 per year)  in total support (spousal plus child), which would taper down to simply child support at some point. "A judge might expect her to be up and earning after four or five years," said Gushurst. "She gets full support and no imputed income until a child is 2.5 years old."

How about the $2 million in pre-marital savings? Certainly the actual income from the $2 million would be fed into the child support and alimony formulae. Can she argue, California-style, to impute a higher rate of income to the $2 million so as to increase her monthly entitlement? "Yes," said Gushurst. "I have seen a court order 7 percent interest imputed during an economic downturn on funds that were being managed by Merrill Lynch and actually earning 3 percent." Ciancio concurs: "A court can use discretion to impute discretion to investments. This issue is hard to litigate because judges are smart but not necessarily equipped with finance degrees. Most of the time they just say, 'I've heard a lot and I'm just going to do something that is in the middle of what I heard.'" Do judges and attorneys discuss the fact that the cash value of a child will rise and fall with inflation, since the interest rate on savings will correspondingly rise and fall? "That's just not something that divorce experts or judges think about," said Eckelberry. "It is the most recently appointed judges who are assigned to domestic relations so they don't necessarily have any background in psychology or finance."

Asset volatility can lead to litigation and profits for a plaintiff. "The wife can argue here that any appreciation of those $2 million in pre-marital savings should be divided. If it has gone up $500,000 then she is entitled to an equitable share," said Eckelberry. What if it has gone down $500,000? Or some other pre-marital asset went down by $500,000? "The $500,000 in appreciation has to be on the property spreadsheet. A pre-marital asset that has gone down in value cannot be on the property spreadsheet, as depreciation is only an economic circumstance. Therefore in reality the court will only consider those assets that have appreciated."

Scenario 5: 18 year old free spirit/music lover; no marriage

An 18-year-old woman goes to a music festival and meets a 38-year-old medical doctor earning $275,000 per year. Things get a little crazy and a few months later she calls him up to say "I am going to have a baby." The 18-year-old does not go to college, quits her $12/hour job during the pregnancy, and does not wish to return to work.

Ciancio: "This is a very common scenario in Colorado. She need not hire an attorney but can go to the state child support enforcement agency to initiate a child support action. They will provide her with legal counsel. She will get child support retroactive to the birth and medical expenses." What about parenting time? "He would have to hire a private lawyer to get any parenting time." Is he disadvantaged compared to if the couple had been married? "He has the same right to parenting time as if they had been married," responded Ciancio, "but he won't get 50/50 because of our doctrine that children under the age of 18 months should be with one parent, effectively a 'tender years" doctrine."

Eckelberry: "The 'best interest of the child' is no different whether the parents are married or not and the child support will be the same [her basic entitlement to child support is a tax-free $23,700 per year, plus any actual expenses of the child paid by the father]. There are two ways for the mother to establish a child support entitlement. One is a paternity case under the juvenile statutes, which can be made retroactive to birth and include medical costs. The other is an allocation of parental responsibilities case under divorce statutes, in which case child support would go back only to the filing of the case." If she decides not to use the state agency but hires a private lawyer instead, who pays the fees? "He pays her attorneys fees either way."

Gushurst: "I have one of these right now, though the doctor makes a lot more than the scenario number. The nurse is asking for three times as much child support as he pays for his previous children." What happens in above-guidelines paternity cases? "I have been in a few cases with professional athletes sued by zero-income plaintiffs. The argument the plaintiff brings to court is 'At his house it will be limousines and caviar.' The result can be $7000 per month in child support [a tax-free $84,000 per year]."

What if the mother marries a wealthy man when she turns 25? All three attorneys agreed that it would not change the doctor's financial obligation toward her.

Removal/Relocation

Colorado calls it "relocation" when a parent wants to move a child from the other parent. Eckelberry explains that this is easier prior to a divorce decree: "It is just all the normal factors in a best interest case." If a relocation case is done as a post-divorce modification, a judge "takes all of the normal best interest facts and adds other factors specified by statute, including why the party wishes to relocate and why the other parent objects to the relocation."

Who wins these? "Ultimately what it comes down to is who is the primary parent. That is the most common reason these are granted, with reference to primary parent attachment theory," said Eckelberry. "Some professionals believe that the worst thing for a child is to be separated from the primary parent and that trumps other considerations." How does this work in practice? "I had a case where the mother was the primary parent and alleged that the children, 5 and 7, were afraid of the father. The father was a doctor who had supervised visitation. A psychologist found that the mother was alienating the children from the father but that primary parent attachment was more important and the mother was allowed to move to Alaska."

Ciancio: "If requested as part of the initial divorce or initial custody in a paternity case, the court has to accept the current location of choice, e.g., if mom is in Michigan and dad in Colorado, and decide custody based on the best interest of children." Who would win? "If requested at the time of divorce she has a very, very good chance of winning. Her reasons for moving don't matter. She is most likely going to win because of the 'status quo' preference to keep children with the person who has been the primary parent." What about a post-divorce modification? "Chances are pretty good that she will get to relocate. On the other hand if dad had a 50/50 schedule and was very involved it would be a real battle to the end. These are the kinds of cases that go to trial."

Quirks

Given that the state doesn't want to clog up the courts with lengthy divorce trials, it is odd that the child support guidelines invite litigation over self-employment income:

For income from self-employment, rents, royalties, proprietorship of a business, or joint ownership of a partnership or closely held corporation, gross income is defined as gross receipts minus ordinary and necessary expenses required to produce such income. “Ordinary and necessary expenses” does not include amounts allowable by the Internal Revenue Service for the accelerated component of depreciation expenses or investment tax credits or any other business expenses determined by the court to be inappropriate for determining gross income for purposes of calculating child support. In general, income and expenses from self-employment or operation of a business should be carefully reviewed to determine an appropriate level of gross income available to the parent to satisfy a child support obligation. In most cases, this amount will differ from a determination of business income for tax purposes. Expense reimbursements or in-kind payments received by a parent in the course of employment, self employment, or operation of a business shall be counted as income if they are significant and reduce personal living expenses.

In other words, in just a few hours of trial, a judge with no training in business or accounting will be redetermining the income of a business that might have taken a trained accountant and bookkeeper several weeks of work to determine under IRS regulations.

Colorado assigns different cash values to children of the same co-parent. If a single person is sued by multiple child support plaintiffs, each with one extramarital child, each successive plaintiff gets a smaller award because previous child support judgments are deducted as an "adjustment to gross income" before calculating each new judgment. What if a married-with-children defendant is sued? The children of the intact marriage are worth only 75 percent as much as extramarital children under §14-10-115(6)(b)(I) of the Colorado statutes.

Colorado establishes cash incentives for a child support plaintiff to have children with multiple defendants. At the top of the table, three children from the same defendant will yield $1.04 million over 19 years while three children from three different defendants will yield $1.73 million in revenue.

Colorado provides superior financial security for child support plaintiffs than for spouses in intact marriages. A judge will order a person who owes child support to purchase life insurance with the plaintiff as the beneficiary, with this expense coming on top of the child support obligation itself. An estate is also liable for a child support obligation, but Gushurst says that one issue with having the estate pay insurance is that "an estate usually winds up after two or three years." What if money is left directly to a child? "A child is not responsible for his own support," says Gushurst, "so the surviving parent cannot tap into the child's assets to replace child support payments." Would life insurance be paid to a trust then, with an independent trustee? "No," says Gushurst, "typically to the surviving former spouse. The U.S. Supreme Court case Troxel v. Granville says that a fit parent makes the best decisions for a child."

Trends, Wishlists, and Personal Reflections

How did Colorado get to the place that it is in, with massive uncertainty regarding custody outcomes and a percentage of abuse allegations that would wear out a devoted Jerry Springer Show viewer? "Lawsuits associated with divorce bring out the worst behavior in even the most reasonable people," said Gushurst. "And bad facts make bad case law. It is very unfortunate that states set things up for a total win/lose situation. The resulting conflict drives its own bad result. Parents who settle their own divorces typically end up in a custody arrangement that is not strictly 50/50, but the adversarial system tends to obstruct settlement, particularly when one party is angry or feels entitled."

Unlike in eastern states where lawyers seem to be delighted that a typical divorce between two upper-middle-class working professionals turns into a fight that ends only when the family's assets and energy are exhausted, all three of our interviewees wanted to see statutes that encouraged less painful and expensive resolutions of divorces.

Eckelberry was willing to consider a Danish-style administrative divorce process. "You'd have to have presumptions for a parenting plan and spousal support," he noted, "and there would be a lot of pushback from people who make money from litigation." What would be an advantage of the system? "A big concern with the current system is that there are so many pro se parties [without lawyers]. It creates concerns about what kinds of orders are being issued. A lot of people are disenfranchised by the traditional legal system because lawyers charge more than they can afford. It would help if more attorneys handled clients of modest means with limited representation."

Gushurst agreed that most divorces should be "moved out of the adversarial system." She suggested "early intervention and collaboration as the default." Gushurst suggested counseling for parents "to get people thinking about their kids" What prevents them from thinking about their kids now? "We started having huge custody battles in 1997 when the child support guidelines came out. Once they attached dollars to overnights people started to fight." What about the fact that a non-adversarial system would necessarily require a one-size-fits-most custody presumption? Perhaps a 50/50 system, a Texas-style 57/43 system, or a European-style "mom always wins" system? "It is better to have some uniformity that might not be an ideal fit for some children than what we do to families with custody litigation. We should not be continuing to invest in a system that leaves so many people disadvantaged even if sometimes a customized outcome is ideal. The research is crystal clear that the worst thing about divorce is the effect of the litigated conflict on the children."

Ciancio agreed that the "days for dollars" system led to a lot of litigation and that formulas and presumptions were positive for helping parties to settle though she was generally more positive than Eckelberry and Gushurst regarding litigation and courts: "You still need judges to use discretion because every case can be very different."

Gushurst liked the idea, supported by attorneys in some other states, of barring high-income plaintiffs from coming to court with child support demands, e.g., a person earning $250,000 per year could not ask for a court order to assist with the expenses of housing and feeding a part-time child. "As long as you made it so that every actual expense of the child was shared, I would support an income limit." Gushurst pointed out that courts already devoted a disproportionate amount of time and resources to dealing with the wealthy: "The only case that I ever had that was tried for more than two days involved two multi-millionaires. The trial was set for longer than a week," she said. "Marriage isn't supposed to be about money. Maybe it was back in the good old days where you bought a wife and paid her family off."

Summary

Colorado essentially operates two separate custody dispute resolution systems within one state. For young children, due to the "primary attachment parent" theory that is functionally equivalent in most cases to a "tender years" doctrine, Colorado is running a "preserve the status quo" or "winner take all" system. For older children, Colorado runs a "craft a new optimum" system. A plaintiff seeking to obtain and hold onto "primary parent" designation is therefore best off  initiating a divorce lawsuit when a child is an infant.

Due to the lack of any statutory presumptions, the wide variation among judges in personal beliefs regarding custody and parenting, the fact that judges are not assigned until relatively late in a case, and the link between parenting schedule and child support profits, Colorado encourages more custody litigation than most states.

More: read the rest of Real World Divorce: web edition | Kindle edition