| I’m
unhappy, but I’m not sure I want a divorce
What is a divorce?
How do we resolve our divorce issues?
What are the different ways of getting divorced?
How do I survive a divorce?
How much will my divorce cost?
What is a traditional divorce?
What is collaborative law?
What is mediation?
What are the differences between mediation and collaboration?
What is arbitration?
How long does getting a divorce take?
Does it matter who files first?
What is a restraining order?
What are the mandatory injunctions?
How is child support calculated?
What is Maintenance?
What happens if we can’t agree on custody
of our children?
How do I decide what approach is right for my divorce?
Choosing an attorney
Your responsibilities if you hire our firm
Changing attorneys
What we stand for
What we will do for you
What we won’t do
More Information:
-practical effects of a legal separation
-if parties can agree with no help from third parties
-divorce is the most stressful thing that most
adults will go through
-three main sources of cost
-steps of a traditional divorce
-hallmarks of collaboration
-other notes about collaboration
-mediators have very different styles
-comparisons of Mediation and Collaborative Divorce
-looking for what is best for your children
-choosing how you want to handle your divorce
I’m unhappy, but I’m not
sure I want a divorce:
If you aren’t sure you want to divorce, you may want to
consider a legal separation. A legal separation allows you to
divide up property, expenses, debts, resolve child issues, and
do just about everything but get divorced. Some people find that
resolving some of the issues that scare them – like the
financial issues – allows them to focus on figuring out
what they want to do with the relationship. For deeply religious
people, who do not believe in divorce, a legal separation can
be the way to go. >> more info
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What is a divorce?
A divorce is the legal ending of a marriage. It is not unlike
the dissolution of a company, except that the issues involved
can be very confusing and emotionally charged. In overview, a
divorce divides the marital estate (all the property and debts
which are considered marital), it imposes a “parenting plan”
(setting out all the issues about the children – who makes
decisions, where the kids live and when, etc.) and it orders child
support or maintenance.
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How do we resolve our divorce issues?
There are two ways people achieve a divorce resolution: they decide
what they want by agreement, or they let someone else decide (i.e.
a judge).
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What are the different ways of getting
divorced?
You can do it yourselves, you can attend mediation, you can do
a collaborative divorce, or you can go to court. >>
more info
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How do I survive a divorce?
This is perhaps the most important question about divorce and
it is often never asked. When you’re in the middle of a
divorce you need to remember that divorce is a process, and one
way or another you will get through it. The trick is to get through
it with the least amount of cost – both financial and emotional
– that you can. >> more info
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How much will my divorce cost?
This is a good question, but unfortunately it is virtually impossible
to answer because it depends on a number of factors outside of
your control. If you're just filing the paperwork yourself, you
can get through it for two or three hundred dollars. If you have
to hire an attorney or mediator, but still can work things out,
the cost is probably a few thousand dollars. For a highly litigated,
contentious case, you can spend literally tens of thousands of
dollars. >> more
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What is a traditional divorce?
The traditional divorce is one where the parties file with the
court, and then follow court rules to resolve the divorce. As
noted, it is an inherently adversarial process, where the parties
are literally working “against” each other every step
of the way. This doesn’t mean you will end up in a big fight,
but it does mean that the court proscribes the way you will approach
resolving issues. >> more
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What is collaborative law?
Collaborative law is a process where parties work with their attorneys
to resolve the conflict in a non-adversarial way. This happens
in a series of four way meetings where the parties sit down and
work together. They work openly and honestly to find a win-win
solution, and they agree to stay out of court.
>> more info
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What is mediation?
Mediation is a process where the parties sit down with a trained
neutral person to resolve their disputes. Mediators are unregulated
in Colorado, but most have a minimum of 40 hours of mediation
training. >> more info
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What are the differences between mediation
and collaboration?
Mediation and collaboration have much in common. In fact, it is
sometimes hard to pinpoint the differences, because the intent
is so similar. However, there are some significant differences.
Mediation can involve attorneys, but sometimes doesn’t.
Collaboration is non-adversarial, and requires complete disclosure.
>> more info
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What is arbitration?
Arbitration is when you allow a third party, who is not a judge
or magistrate, to make decisions for you. Although this is like
a court process, there are some significant differences. One difference
is that it is much quicker, but it does cost money. Another is
that arbiters are not bound by the same rules of evidence that
courts are. This can be good or bad, depending on your case. The
most important difference is that the way an arbitration decision
can be changed is much different and much more difficult than
a judge’s decision.
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How long does getting a divorce take?
That depends. You can be divorced 90 days after filing if all
goes well. If there are major issues, then it can last years.
A typical divorce is finished in less than one year.
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Does it matter who files first?
No. It may be that in the past it mattered, but it really doesn’t
now. The only strategic advantage is in a contested hearing –
because the Petitioner calls evidence first. On the other hand,
the Respondent gets the last say.
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What is a restraining order?
This is a court order preventing contact between parties. It usually
comes into play in a divorce as a result of domestic violence
(or allegations thereof) or when one party scares the other to
the point that they seek a restraining order. Restraining orders
are automatic in criminal cases (like assault or domestic violence)
but they can only be put into place in divorce when there has
been actual physical harm or serious threats of harm: “any
act or threatened act of violence”.
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What are the mandatory injunctions?
When a Petition is filed, certain restrictions automatically apply
to both parties. Once a Petition is filed, neither party can remove
a child from the state without agreement of the other party or
an order of the court, neither party can disturb or harass the
other nor can they hide, destroy, transfer or encumber assets
and, lastly, neither party can shall make changes to insurance
unless the other party approves.
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How is child support calculated?
Child support is based on the incomes of the parents, the number
of overnights that the children spend with each parent, and the
normal expenses (health insurance, child care, orthodontics, etc.)
that go into raising your child. The calculation is based on a
statute, and parents rarely have a reason to fight over child
support.
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What is Maintenance?
Maintenance – or spousal support – is what used to
be called alimony. Maintenance is based on the need of the spouse
receiving it and the ability of the other spouse to pay it. There
is a formula for temporary support (>> more
info) but long term maintenance is very difficult to predict.
A number of factors – the length of the marriage, disparity
in incomes of the spouses, the lifestyle established during the
marriage – all come into play.
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What happens if we can’t agree
on custody of our children?
First of all, custody is a term that has been phased out in Colorado.
However, when parents can’t agree on how to parent after
divorce, they typically have several options to guide them. The
best, and most frequent option, is the appointment of a Special
Advocate, who can be either an attorney or a psychologist, who
works on behalf of the court to make recommendations of what should
happen (based on the best interests of the child[ren]). For parents
working in mediation or collaboratively, it is common to find
a “child expert” who can work with them to explore
the best avenues for protecting their children after divorce.
>> more info
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How do I decide what approach is right
for my divorce?
If you and your spouse can decide on most of the divorce issues,
then you can download the forms from the Colorado courts page,
and have at it. You don’t need to have an attorney do anything
(except that you probably want to have an attorney review your
final paperwork if there are significant assets or children involved.)
If you and your spouse want to work out the issues in your divorce,
but you don’t think you can agree on everything without
help, you have two good choices: mediation or collaborative law.
Keep in mind that just because you want a simple, nice
divorce, it won’t be possible if your spouse wants a big
fight.
To find out what may work best for you, click >>
more info
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Choosing an attorney
The attorney-client relationship is of critical importance. You
will be relying on this person to represent you through one of
the worst times in your life. If you choose someone whose values
don’t mesh with yours, it is a recipe for disaster.
If you need a real “fighter” but choose an attorney
who prefers to settle, you will feel unrepresented. If you want
to settle, but choose an attorney who prefers to fight, you will
feel betrayed and bilked (fighting is expensive!). Either way,
it is you, and not the attorney, who has to live with the end
result.
Many people hide behind their attorney’s actions –
don’t be one of them. If you want someone who won’t
make a situation worse, then choose carefully. You know your spouse
best, and you likely can predict what is going to set them off
better than anyone else. Attorneys are trained to be advocates,
but if they are not careful, they can raise the level of misunderstanding
and hostility, so choose a careful attorney.
If you know your spouse is tricky and your divorce is likely
to end up in court, choose an attorney who is an able litigator.
Just because someone is in court alot does not predict their courtroom
skills – it may predict their negotiation skills, or it
may reflect the type of cases they tend to take.
Ask an attorney how available they are to respond to questions
if you know that being in the dark is going to make you anxious.
Ask them what they think are the most important results of a divorce
– and compare it to your own values. Is winning most important?
Is keeping costs low most important? Is keeping conflict low important?
Where do the kids fit in?
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Your responsibilities if you hire our
firm:
We expect you to be honest with us. We expect you to help us –
by completing any tasks that we’ve asked you to do and by
returning our calls. We expect you to live up to the financial
commitments you make to us. We expect you to notify us if your
address or telephone number changes, or when you learn something
that may affect your case.
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Changing attorneys
There are a few times – like right before a hearing –
when changing an attorney is impractical. However, if you find
yourself unhappy with your representation, particularly if you
think your case is being ignored or, alternatively, over-litigated
– consider getting a new attorney quickly.
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What we stand for.
We are committed to making sure that our clients have the best
representation possible in their divorce. We strive to minimize
conflict, and we work with clients to identify and pursue settlements
that meet their needs. We believe it is our duty to try, at all
times, to find amicable solutions to divorce problems. We encourage
collaboration and, even in traditional cases, we will adopt a
collaborative style that emphasizes finding win-win solutions.
However, we can and often do represent clients in contested hearings.
Everyone at Gushurst Family Law is a skilled litigator.
We know that there is fallout from contested hearings –
even if our client wins – and we’ve made a conscious
decision to try to avoid going to court. We know contested hearings
lead to alienation and hard feelings, and that it is hard to co-parent
with someone you hate. Research is very clear that conflict
between parents is the single most negative factor in children’s
lives. Some researchers believe that it is more even damaging
than physical abuse.
What we’ve found is that taking the high road is only really
significant when the other person is not.
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What we will do for you:
- We will help you decide what are the most important issues
for you, and we will aggressively push resolution on these issues
to meet your needs.
- We will take a collaborative approach that is respectful
of the needs of the other side. We will not inflame a bad situation
with hyperbole or posturing that will make the final outcome
worse because it will really annoy your spouse.
- We will listen to you. You are the customer, and we are very
respectful of your position. Your satisfaction with our service
is very important to us.
- We will recommend mediation and dispute resolution techniques
that lessen the conflict and save you money.
- We will be honest with you about what a reasonable outcome
is. A lot of times, people look for attorneys who tell them
what they want to hear. We think this sets you up for failure,
so we won’t do it.
- We will work hard to find a good settlement for you. If that
involves going to trial, you can count on excellent representation.
We don’t like going to trial for the simple fact that
we think it is hard on clients, but when we go, we are prepared,
organized, and we are diligent.
- We will tell you if we think you’re making bad decisions.
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What we won’t do:
- We won’t advocate positions that we believe are not
in your best interests.
- We won’t advocate positions that we believe are not
in the best interests of your children. Specifically, we won’t
use children’s issues as “bargaining” tools
to resolve other aspects of the divorce. We think this is wrong.
- We won’t argue for the sake of arguing. If we think
you are being unreasonable, we will tell you.
- We respect attorney-client privilege. However, we will not
lie on your behalf.
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MORE INFORMATION:
#1 - There
are some practical effects of a legal separation. Some
insurers allow legally separated spouses to maintain health insurance
for the other spouse. You cannot get remarried as long as you
are legally separated and you may, inadvertently, create additional
marital assets while legally separated.
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#2 - If the parties
can agree with no help from third parties, that is their best
option. They can write down the terms of their agreement,
and they can ask the court to make their agreement the court’s
order (usually these agreements are called “Separation Agreements,”
and they are legally binding contracts).
If the parties want to work it out, but get stuck, they can try
mediation or collaborative divorce. Both of these options allow
the parties to work out their own terms with the help of third
parties. Both strategies keep the parties out of Court.
If the parties can’t or don’t want to work it out
between themselves, they will pursue what is known as a traditional
divorce. The traditional divorce follows the court rules of procedure,
as outlined below. The traditional divorce occurs in an adversarial
forum and pits the parties against each other. It is important
to note that even in traditional divorce, most cases are not actually
litigated. Most cases settle without the need for a court hearing.
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#3 - Research shows that divorce is
the most stressful thing that most adults will go through in their
life. It is more difficult emotionally than bankruptcy,
or even the death of a spouse.
It’s kind of the worst of all worlds: you are under the
most stress and emotional pain of your life, and you’re
expected to make critical decisions that will effect you for the
rest of your life. It really is no wonder that it causes so many
problems in our society.
There are many different ways this takes shape. Some people become
depressed and are willing to do anything to “make the pain
stop”. Some people get angry, and revenge is behind just
about every thought and decision. Some people can’t sleep.
Some people can’t stop sleeping. Some people lash out at
the ones they love. Some people find themselves paralyzed and
unable to make decisions or complete the simplest of tasks. Some
people hide their assets. Some people accuse the other of unspeakable
evils, and then they sometimes believe the accusations. Some people
become fearful.
If you see yourself in any of the above, take heart, what you
are going through is normal. If you see these traits in your spouse,
then you know you are normal… (Humor, incidentally is one
of the best weapons you can use to bring yourself back from the
brink…)
I suggest the following to almost all my clients:
1) Get in a good divorce support group. They
exist and your attorney can refer you to them. Yes, friends
are a lifeline, but too often friends reinforce your worst attitudes
(like “he is such a schmuck, you should take him to the
cleaners” or “yes, she’s a witch, you shouldn’t
let your kids stay there one more minute). Your friends may
think they’re being supportive, and fear and anger are
normal parts of divorce, but you need to try to work through
them rather than let them control how you behave.
2) Get counseling or therapy. I know this
sounds sappy to some, but it makes a huge difference in how
you will be able to protect yourself, your family, and your
values, during the process of divorce. Being able to live with
your decisions and who you become during your divorce is something
you can’t do when you’re busy reacting to all the
emotions you will be processing. Attorneys make very expensive
and often inadequate counselors.
3) Exercise. It is probably the cheapest
and most effective way to deal with the stress.
4) Laugh. Humor is the best medicine –
and is a good antidote for emotional pain. Laugh as much as
you can. Cry when you have to, but go to comedies, and do what
you can to bring yourself back to laughter. For goodness’
sake, do not be renting or watching movies like Steel Magnolias
or Terms of Endearment.
5) Forgive. Forgiveness is powerful. Forgive
yourself and try to forgive your spouse.
6) Look ahead. Try to find the best path going
forward. Remember, the ultimate revenge is living a good life.
7) Let yourself grieve. Ask yourself how much
of your feelings are due to the loss that divorce represents,
rather than the obvious faults of your spouse.
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#4 - There are three main sources of
cost:
a) Court costs (filing, serving, etc.)
The cost to file a Petition with the Court depends on the
County in which you are filing, but typically is $184; filing
a Response is about $70. Serving your legal documents can
cost approximately $40.
b) Expert fees. The cost of an expert depends
on the type of expert, the experience of the expert, the amount
of time they expend, etc. Experts typically used can include:
- mediators
- appraisers (for assets like businesses or real estate)
- special advocates (for issues involving children)
- CDP (certified divorce planner)
c) Attorney’s fees. Attorneys bill
by the hour for divorce (we are not allowed to take contingency
arrangements for divorce). While the hourly costs vary from
attorney to attorney, the style of the attorney and the nature
of the controversy largely determine the amount of fees.
Some attorneys are very hands-on, and some are not.
The perception that attorneys can add cost to the process
is both true and not true. Attorneys only do what their clients
want them to do. A client can take a very conciliatory approach,
or it can be a heated, adversarial approach.
Attorneys know the pitfalls of divorce and can avoid agreements
that are inadvisable because they leave out dealing with issues
that can cause additional conflict later on, although they
are not causing conflict at the time of the divorce. Attorneys
can suggest solutions the parties might not have considered.
Attorneys can advise on the legal repercussions of decisions
that parties cannot foresee.
It is really important to choose an attorney who works well
with your style, who understands your needs, and
whose approach reflects your values.
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#5 - The steps of a traditional divorce
are:
1) One party files a Petition and serves the
other, or both parties file a Petition together as “Co-Petitioners”.
In the first approach, the second party has 20 days to file
a response to the petition (if you file jointly, no response
is needed).
2) Once a response is filed, both parties have
20 days to provide their financial disclosures to the other
party. In Colorado, there are mandatory disclosures, pursuant
to the Colorado Rules of Civil Procedure, Rule 26.2. The disclosures
consist of three years’ of tax returns, recent retirement
statements, and three months’ of pay stubs. There are
additional requirements for business owners and the self - employed.
3) If the case is in the simplified divorce
protocol (which, in metro Denver, is every county except Jefferson
County) you will be required to set up a status conference within
30 days of filing. This means you will appear before a court
official (sometimes a judge or magistrate, other times a court
facilitator) to discuss the issues in your case and how you
think the case will proceed.
4) Then you work toward solving all the issues.
This phase is called the discovery phase. This is when you identify
and exchange all the information you think the court will need
to make a decision. Discovery may include:
a) Serving interrogatories or holding depositions.
While both are useful tools for getting information, they
are both onerous and expensive, and can result in revving
up the hostility between the parties;
b) Hiring evaluators to assess the value
of businesses, or other assets like homes, real estate, time
shares and the like;
c) Hiring custody evaluators to create reports.
This a process in which a third party (who doesn’t know
either parent) assesses the psychological reality of the situation,
and makes recommendations as to how the parents should parent
after divorce;
d) Hiring other professionals to give opinions
on divorce issues. Some common examples are financial planners
or vocational evaluators.
5) Temporary Orders: The Court will allow
you to set a Temporary Orders hearing if you cannot agree on
who pays what, or where the kids live, until the final divorce.
Most times, people work this out, but sometimes they can’t.
There is a temporary maintenance statute for couples whose combined
annual income is less than $75,000. The formula for incomes
under $75,000 annually, is simple: forty percent of the greater
salary, less half the lesser salary.
6) The last thing that happens is a final hearing,
where you put on testimony before a judge.
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#6 - The hallmarks of collaboration
are:
1) The parties – not their attorneys
– decide all the issues.
2) The parties agree to approach their divorce
from a non-adversarial position. In other words, rather than
looking at it as a pie that gets cut up – with both parties
wanting to receive the bigger slice – they try to find
a solution that works for both of them. This little adjustment
in thinking can make a huge difference.
3) The parties agree to stay out of court.
If the collaboration breaks down, nothing that has happened
(except for signed agreements) can be used against the other
person in court and even the attorneys must resign so that they
cannot represent the parties in a contested court action. Even
if they use private judges for some issues, they agree to opt
out of the adversarial system.
4) The parties agree to open and honest communication.
There are no secrets, and there are no hidden agendas. There
is full disclosure, and open discussion of difficult issues.
It is hard work, but it achieves much better results.
5) The issues are defined by the parties,
and not the legal system. This is critical, because often the
most important issues - like your relationships with in-laws,
or how you both attend school functions – don’t
get addressed in the traditional legal system. In collaboration,
we talk about the “relational estate” and the bigger
picture. Conversely, some issues of legal importance, are not
definitive in collaboration. What you might get in court can
be wholly irrelevant because, in collaboration, you look for
what works for you, not how a judge would decide an issue.
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Some other notes about collaboration:
- Most people agree you achieve a much better result through
collaboration.
- This is VERY hard work, and it requires a level of honesty
and dedication to the process that is very difficult
- Most collaborations involve use of mediator.
For more information, please visit the Colorado Collaborative
Law Professionals web site at: cclawp.org
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#7 - Mediators have very different
styles. Many attorney-mediators conduct “settlement”
mediations, where they put pressure on the parties to resolve
a dispute, and where they give their opinion of the possible legal
outcomes of various situations. Non-attorney mediators typically
are more likely to allow the parties to fashion their own results,
and are much less likely to insert their own opinions.
Most mediators reduce agreements to a “memorandum of understanding”
which can be signed and filed with the Court as a Separation Agreement.
Mediation is confidential and what is said in mediation is inadmissible
in Court.
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#8 - Other comparisons of Mediation
and Collaborative Divorce:
- Mediators are not advocates. They are neutral. They should
not tell you what is good for you or what is not. Collaboration
allows you to have an advocate attorney who will discuss the
pros and cons of decisions with you – and give you advice.
- In collaborative law, there are no secrets. In mediation,
although you are coming together to find a mutual decision,
you are still on opposite sides of that decision, and you can
still keep secrets from each other.
- Mediation may be, to varying degrees, adversarial in that
each of you is trying to find the solution that works best for
you. In collaboration, you must commit to the principle of finding
a solution that works for both of you.
- Mediation is usually less expensive, if there is only a mediator
at the sessions. Mediations where the attorneys attend are equivalent
to collaboration. If mediation works for you, then it may be
a better alternative to collaborative divorce.
- Mediation may not be appropriate for you if there is a tremendous
power imbalance that makes one person more likely to get their
way at the expense of the other. Power imbalances may include:
when there have been past domestic violence or intimidation
issues, when one party is much more knowledgeable on the issues,
when one party is a much better negotiator, or one party is
very fearful.
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#9 - Looking for what is best for your
children can be really difficult, particularly when you are really
upset with the other parent. It is really a good idea
to try and work on respecting and working with the other parent
because, unless they are actually physically or sexually harming
your children, you will be co-parenting with them for a long time.
This will be easier if the two of you don’t hate each other.
The Colorado legislature has determined that decisions regarding
what to do with children should be based on what would be in the
best interests of the child. The legislature has also come up
with a statutory scheme for determining how to determine what
is “in the best interests of a child”. Specifically,
this scheme is found in C.R.S. 14-10-124, part of which is excerpted
below:
“In determining the best interests of the child for purposes
of parenting time, the court shall consider all relevant factors,
including:
(I) The wishes of the child's parents
as to parenting time;
(II) The wishes of the child if he or
she is sufficiently mature to
express reasoned and independent preferences as to the parenting
time
schedule;
(III) The interaction and interrelationship
of the child with his or
her parents, his or her siblings, and any other person who may
significantly affect the child's best interests;
(IV) The child's adjustment to his or
her home, school, and community;
(V) The mental and physical health of
all individuals involved, except
that a disability alone shall not be a basis to deny or restrict
parenting time;
(VI) The ability of the parties to encourage
the sharing of love,
affection, and contact between the child and the other party;
(VII) Whether the past pattern of involvement
of the parties with the
child reflects a system of values, time commitment, and mutual
support;
(VIII) The physical proximity of the
parties to each other as this
relates to the practical considerations of parenting time;
(IX) Whether one of the parties has been
a perpetrator of child abuse
or neglect under section 18-6-401, C.R.S., or under the law
of any
state, which factor shall be supported by credible evidence;
(X) Whether one of the parties has been
a perpetrator of spouse
abuse as defined in subsection (4) of this section, which factor
shall be supported by credible evidence;
(XI) The ability of each party to place
the needs of the child
ahead of his or her own needs.”
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#10 - Choosing how you want to handle
your divorce is something that will not be completely dependent
on you. If you want collaboration or mediation, and your
spouse does not, you can’t do either.
In order to decide what may work best for you, consider the following:
Requisites for both mediation and collaboration:
- you trust the other person to be honest about important issues
like parenting and assets;
- you are both willing to attempt either mediation or collaboration
in good faith;
- you are both people who will abide by their agreements;
- neither of you has any mental illness that will preclude you
from the three previous points.
Mediation is a good choice if:
- you feel you can adequately express yourself and you understand
the issues;
- the issues are sufficiently simple and you and your spouse are
confident you can resolve them without outside help.
Collaboration is a good choice if:
- you are afraid to not be represented by an attorney;
- you want all issues on the table, with no secrets on
either side;
- you have doubts about your ability to represent your side (this
may especially be true if you have experienced domestic
violence);
- You want a non-adversarial approach;
- Both you and your spouse are willing to hire attorneys who
are collaboratively trained.
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