Develop a Divorce Plan to Keep the Goal in Mind

Divorce is a difficult journey. Have a plan for life after divorce.

Divorce is a difficult journey. Have a plan for life after divorce.

Divorce is a difficult journey–don’t let anyone tell you differently.  It doesn’t matter whether the divorce is “uncontested” or “simple;”  it doesn’t matter how good your lawyer is; it doesn’t matter how free from blame from the breakup of the marriage you perceive yourself to be–divorce is always going to be difficult.  Whether you were the spouse who sought the divorce or not.

Sometimes along the journey of divorce, we get caught up in various battles of the day and we lose focus on the ultimate goal. Sometimes it seems the most important thing is the process of ending the marriage:  filing for divorce, gathering documents, mediation, preparing for hearings and trial, and getting it over with!  At other times, the most important thing is getting out of the painful relationship and away from your spouse as quickly as possible.  Others may seek revenge by using the system to punish their spouse for hurtful or abusive behaviors.  The most important thing to focus on, however, is the ultimate goal, the finish line:  life after divorce.

Whether you wanted the divorce or not, whether you feel you have been wronged by your spouse or not, no matter how complex the process may seem, your main focus needs to be your life after divorce.

1.  Make a plan.  Early on in the divorce process–even before separation, if possible–you need to develop a plan of how you are going to live after divorce.  Visualize yourself as single again.

Where will you live? Can you afford to live in the same home you share with your spouse?  If you need to move, what kind of home do you need?  A house?  An apartment?  Will you need to rent for a while or will you be able to buy a home right away?

How will you support yourself financially?  If you are not employed, what kind of job will you seek?  How much income will you need?  Will your spouse be required to pay you child support or alimony to offset your expenses, or will you be required to pay your spouse?  Will your current income, plus or minus child support or alimony, be enough to support you in the lifestyle to which you have become accustomed?

If you have children, how will they been cared for?  Do you foresee the children living with you most of the time, living with the other parent, or do you anticipate sharing custody and parenting time?  If you work, how will the children get to and from school?  Will your work allow you time off to take the children to the doctor?  Will the children need a babysitter?  Are there any family members or friends nearby who would be willing and able to watch the children?  Keep in mind that being a single parenting is usually more challenging than being a married parent.

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How Property Division in Divorce Works

prop-divWhen parties get divorced, all property acquired during the marriage must be divided between them.  Property division is one of the most important issues in a marriage dissolution. There are all types of property that have to be distributed, including real estate, automobiles, bank accounts, stocks, bonds, retirement accounts, employment benefits, furniture, recreational vehicles, and personal effects.

Property division is a three step process:

1.  Setting Aside Separate Property.  The first thing that the parties or the court must do is to set aside each parties’ separate property.  Generally speaking, separate property consists of all property owned by a person before they are married, together with property they received during the marriage by gift or inheritance.  Any property exchanged for separate property is also separate property, provided that the exchange can be traced.  Any property received after a decree of separation is separate property.  The characterization of property as separate or marital is very important because the court cannot award one spouses’ separate property to the other spouse.  Some exceptions apply, so if you have any questions, you should consult with an attorney.

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Divorce in the News: Stay-at-Home Parents Are At Financial Risk During Divorce

A very interesting article in the Huffington Post this morning, written by divorce lawyer Beverly Willett, entitled, “Are Stay-At-Home Parents At Financial Risk During Divorce?“  Willett writes,

In practical terms, if the breadwinner leaves, the first risk faced is lack of immediate access to funds. Even if you have a joint bank account, your spouse might decide to open a new one in which to deposit paychecks. Joint stock or savings accounts may require joint approval for withdrawals. This could leave stay-at-home parents hostage for money until they are able to secure a temporary order of support as well as funds with which to defend themselves. For that, they’ll undoubtedly need to hire an attorney and pay a retainer, unless the lawyer is willing to wait.

Indeed, the non-working spouse is at the greatest risk when the divorce was not anticipated.  Unfortunately, most states have adopted no-fault divorce grounds, permitting one spouse to the union to seek divorce unilaterally, regardless of the other spouse’s wishes.  In Colorado, the cause of the breakup of the marriage is not admissible in the divorce.  Courts will not consider which spouse is at fault when weighing how to divide property “equitably.”  The benefits the innocent spouse expected to receive from the continuation of the marriage are not deemed relevant, even when it comes to the award of spousal maintenance.  Willett continues,

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Testifying in Court

The judge weighs the witness's credibility.

The judge weighs the witness’s credibility.

It can be a scary and intimidating experience to testify in court.  Most people don’t have to testify in court very often.  It is okay to be nervous.  Most people are nervous when they testify.

To some extent, testifying in court is uncomfortable because it is unnatural:  Witnesses can’t just come into the courtroom, talk directly to the judge or jury, and say whatever they want.  Rather, they have to answer questions posed by a lawyer, while the judge and jury listen to the exchange.

If you are being called as a witness it is either because you are a party in the case or one of the attorneys believes you have important information that the judge or jury needs to consider in making a decision.  Whenever I am preparing a witness to testify, I give them the following instructions:

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Advice for Parents in the Military

Thank you for your service!

Active military duty is hard on families.  Too often, marriages are a casualty of war.  When our servicemen are deployed for long periods of time, it is not uncommon for husbands and wives to grow apart.  Even when marriages survive, relationships with children can suffer.

If you and your spouse are having marital difficulties, and you anticipate separation or divorce, don’t forget the children.  Your efforts to maintain contact with your child during duty and deployment will directly affect the amount of parenting time you are granted when the divorce is final.  It could even determine whether the other parent is permitted to move out of state with your child.  Here are a few suggestions:

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C’mon Baby, Do the Locomotion: Locating and Relocating with a Child in a Colorado Divorce

A parent may decide where they wish to live upon divorce, but after divorce relocation is more complicated.

A parent may decide where they wish to live upon divorce, but after divorce relocation is more complicated.

Question 1: I am about to get a divorce, and I want to move back home to Texas. Will the court prevent me from moving with my child?
Answer: No. Colorado Law recognizes a parent’s right to decide where they wish to live upon divorce. Unlike some states, whose courts have the power to restrict the residence of a child (and thus a parent) to a particular county or geographic area, Colorado courts have decided that each parent has a constitutional right to live wherever they want.  If you want to move to Texas or any other place when the divorce is final, the court will not stop you.  What the court will do, however, is allocate parenting time between the parents based upon the best interests of the child.  In deciding how much parenting time each parent should have, the court will consider Continue reading

Do-It-Yourself Divorce?

Representing yourself in court can be scary.

Representing yourself in court can be scary.

Do I have to hire a lawyer to get a divorce?  The answer is no:  you have the right to represent yourself in court. Pro se (pronounced “pro say”) is the term used to describe a party who represents himself in court, without an attorney.  In as many as half of the divorces filed in El Paso County today, neither party hires a lawyer.  The most common reason a person will represent himself is the high cost of hiring an attorney.  While you can represent yourself, for the reasons stated below, I don’t recommend it.

Why does divorce cost so much?  The old punchline says…. Continue reading

Keep a Visitation Journal or Calendar!

22888gfb1yh0sed1Honore: We met at nine
Mamita: We met at eight
Honore: I was on tim
e
Mamita: No, you were late
Honore: Ah, yes, I remember it well. We dined with friends
Mamita: We dined alone
Honore: A tenor sang
Mamita: A baritone
Honore: Ah, yes, I remember it well!

(“I Remember It Well,” from the musical Gigi, 1958)

“He said, she said.”  That’s what we call a dispute between two parties when the only evidence is one parties’ word against the other.  When there are two sides of a story, the judge must determine which party to believe: Which party is more credible?  Is there any other evidence which will corroborate a party’s story? Continue reading

About Kirk Garner

Kirk Garner was born in Colorado Springs, Colorado in 1967.  He was raised in and around Lubbock, Texas, and graduated from Shallowater High School in 1985.  Kirk graduated from Abilene Christian University in 1990 with a bachelor’s degree in marketing.  The week after graduation, he married his wife of now more than 25 years.  They have three daughters.

Kirk graduated from Baylor University School of Law in 1995.  During law school, he served on the Baylor Law Review, and was a member of the international legal fraternity Phi Delta Phi and the Harvey M. Richey Moot Court Society.

Upon graduation, Kirk Garner was admitted to the Texas Bar, and practiced law in Winnsboro, Texas, for fifteen years.  He had a general small-town practice, including family law, civil litigation, probate, and criminal defense.

In 2010, Kirk obtained his license to practice law in Colorado.  He and his family pulled up stakes and moved to Colorado Springs, where they had always wanted to live.

Kirk Garner opened his Colorado Springs law office in 2010. The Colorado Springs office is devoted to all aspects of family law, including divorce, child custody, child support, spousal maintenance, adoption, and grandparents’ rights.

In 2011, Kirk Garner added a second office in Woodland Park to better serve his clients in Teller County.  The Woodland Park practice is more of a general-civil, small town law firm. In addition to family law and dissolution of marriage, the office handles civil litigation, probate, and other matters. Have a case in Teller County? Call Kirk Garner today to see if he can help.