You Don’t Have to Leave Teller County to Find a Lawyer

Teller County Boundary SignYou don’t have to leave Teller County to find a good attorney: the Law Office of Kirk Garner has an office right here in Woodland Park!

A number of attorneys have an office in Woodland Park, but only a few handle family law cases and general civil litigation. I have over fifteen years experience helping small-town, rural folks with their legal problems. From divorce and child custody cases to small claims court to probate and wills, I have the experience and know-how to handle your case. So whether you live in Cripple Creek, Victor, Florissant, Divide, Crystola, or Woodland Park, call me today to schedule an appointment. You won’t regret it.

Also Licensed in Texas!

Kirk Garner is a licensed attorney in both Colorado and Texas. He has been licensed by the Supreme Court of the State of Texas since 1995, the year he graduated from Baylor Law School.


Kirk Garner practiced law in Texas for nearly 15 years. He had a general, small town practice, handling family law, probate, civil litigation, and personal injury cases.

If you need advice on a pending Texas case, give the Law Office of Kirk Garner a call today. Likewise, if you have a case that is being transferred from Texas to Colorado–or vice versa–Kirk Garner can help you interpret the orders, decrees, and pleadings from one state to the other. If you are served with papers from a Texas lawsuit, make sure you get legal advice. Texas may not have jurisdiction over you or your case. If you appear in a Texas court or fail to file a special appearance, you may give Texas jurisdiction. Don’t accidentally waive your right to be sued in your home state: call Kirk Garner to discuss your case today.

Kirk Garner is licensed in Colorado and Texas.

Kirk Garner is licensed in Colorado and Texas.

Teller County Courthouse

Teller County Courthouse in Cripple Creek

Teller County Courthouse in Cripple Creek

This is the Teller County Courthouse, in Cripple Creek, Colorado.

I love old, historic courthouses. Give me a courtroom in an old courthouse any day. Tall ceilings, wood floors, big windows and creaky doors. I love it! If only the walls could speak, just think of the stories they could tell: about disputes resolved, sentences handed down, and justice served throughout the years.

120425.County-Court-300x169The old courthouses were built when it was important to have natural lighting. It was a practical design, due to the poor illumination provided by early electric lights or gas lights. Not so with most modern-day courtrooms. Most have removed all windows, so as not to distract jurors, witnesses, or the lawyers. Most newer courtrooms are lit with florescent bulbs. If you didn’t look at the clock on the wall, you would have no idea what time it is. 9:01 a.m. looks just the same as 4:45 p.m. I tell you it is depressing! The body needs light. Your internal clock needs the light to be able to adjust its circadian rhythms throughout the day. The absence of natural light leads to depression and, I think, may make judges and lawyers irritable and impatient. Thank goodness for the the good old courthouses like we have in Teller County.

Lighting may be abundant, but oxygen is not. The Teller County seat is 9,500 feet above sea level; nearly two miles above the ocean! The air is thin and dry, and we love it! There are chairs in the courthouse hallways so the lawyers from out-of-town can sit and catch their breath.

If you need a lawyer in Teller County, call an attorney with an office in Teller County: call Kirk Garner today.

Calculating Child Support

How much child support will I have to pay? How much child support will my ex-spouse have to pay? These are common questions that need to be answered so that you can prepare for the future after divorce or separation. The calculation of child support is complicated. The Colorado State Judicial Branch has provided lawyers and parents with a worksheet to help calculate support (which is linked below), however, every case is different. The application of your circumstances to the child support guidelines must be considered carefully to make sure that all rules and exceptions are applied. Therefore, it is highly recommended that you consult an attorney to make sure that you do not shortchange yourself.

In Colorado, child support is governed by section 14-10-115 of the Colorado Revised Statutes. This long and complicated section contains guidelines for child support based upon the income of the parents and the amount of parenting time exercised by each parent. While the amount of support will vary depending on the circumstances of the parties and children, the code contains a formula to calculate the child support that is presumed to be in the best interest of the children. A Microsoft Excel spreadsheet containing the formula is available from the Colorado State Judicial Branch, and can be found here– Child Support Worksheet. Instructions on how to fill out the worksheet can be found here–Instructions.

There are two major elements to the child support formula: the parties’ relative income and the amount of time each parent spends with the children. The guidelines will also consider other factors, including the number of other children for which one of the parents owes a duty of support, extraordinary medical expenses, day care expenses, and the cost of health insurance.

With respect to the parties combined income, gross incomes generally include all full-time income from each parent. Some exceptions apply. For instance, overtime is sometimes included in a child support calculation, but sometimes it is not included; it depends whether the job requires overtime or not. As a general rule, a party is not required to work more than one full-time job to support his or her children. If a party is unemployed or underemployed, the Court may treat that parent as though they were working full time at a job for which they were qualified. For example, an executive capable of earning $100,000 per year who would be able to find work in her profession would not be able to quit her job and go to work flipping burgers for minimum wage in order to lower her child support. If she did that then the Court would probably calculate child support as though she were earning up to her potential. If a parent is able-bodied, then absent good cause the Courts will presume that they are capable of earning at least minimum wage and working forty hours per week. Other exceptions and rules apply. Contact the Law Office of Kirk Garner or another attorney of your choice to obtain legal advice.

As stated above, the child support guidelines will also take into account the amount of parenting time that each parent spends with the children. Parenting time is calculated by adding the number of times per year that the children spend with each parent. If the children spend fewer than 92 nights with one parent, then child support is not affected. As the parenting time becomes more equal, and the children spend more than 92 nights with each parent, the amount of child support starts to equalize between the parents. The unfortunate effect of the equalization is that one parent or another may seek more overnight periods of possession than they are really prepared to handle just so that they can lower their child support obligation. Likewise, the other parent may seek to unfairly limit the other parent’s visits to increase the amount of support they receive. Nevertheless, I believe that Colorado’s method of calculation is better than other states’ that only consider the income of one parent.

Child support is generally payable until a child reaches nineteen years old or graduates from high school, whichever occurs later. Child support may terminate earlier in certain circumstances. The law does not require a parent to provide financial support for a child after age nineteen. Thus, parents are not required to pay for their children’s college education.

If you have questions about how much child support you can expect to receive or pay upon divorce or separation, please call Kirk Garner today to set up an appointment!

Now Serving Teller County!

PPCU-300x160The Law Office of Kirk Garner is pleased to announce that we have opened an office in Woodland Park, to better serve clients in Teller County. The office is located on the second floor of the Pikes Peak Credit Union, 720 W. Midland Avenue, Woodland Park, at the intersection of Highway 67 and West Midland Avenue. We have an absolutely magnificent view of Pikes Peak and Woodland Park. There are only a few attorneys who practice family law from Teller County. If you live in Teller County and need an attorney for dissolution of marriage, child support, spousal maintenance, grandparent rights, or a Department of Human Services matter, call us today.

How Alimony Works in Colorado, Part Two

Calculating temporary alimony can be a contentious process.

Calculating temporary alimony can be a contentious process.

In Part I of my series about alimony in Colorado (which you can read here), I discussed how alimony (officially called “maintenance”) is awarded as part of temporary orders while a divorce is pending.  Specifically, that post dealt with the formula that is presumptively applied when the parties earn a combined annual income of $75,000 or less.  In this post, I will continue with the discussion of temporary maintenance (that is, maintenance awarded before the divorce is final) for situations in which the spouses together earn more than $75,000 per year.

When the husband and wife’s combined annual income is greater than $75,000 per year, there is no presumptive formula or guideline for the court to apply.  As such, the amount to be awarded is determined on a case-by-case basis.  Each case is different, and different judges will calculate temporary alimony differently.

Step 1.  Is a spouse eligible for temporary maintenance? The first thing that the court must determine is whether the spouse seeking alimony is eligible to receive it.  The court must find that the seeking spouse:

(a)    Lacks sufficient property, including marital property apportioned to him or her, to provide for his or her reasonable needs; and
(b)    Is unable to support himself or herself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

“Reasonable needs” and “appropriate employment” are considered in light of the expectations that the spouses have developed during the marriage.  “Reasonable needs” means more than bare essentials, but considers the spouses’ lifestyle during the marriage.  “Appropriate employments” means employment suited to the individual.  Not just any job, but a job suited to the person.

Step Two. Determining the Amount of Temporary Maintenance.Once the court determines that a spouse lacks sufficient property to support himself or herself, and that he or she is unable to support himself or herself by suitable employment, the court will go on to determine how much support should be paid to the other spouse.  This calculation is very subjective.  The court will consider “all relevant factors,” including six factors listed in the statute:

(a)    The financial resources of the party seeking maintenance, including marital property apportioned to such party, and the party’s ability to meet his or her needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party;

(b)    The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment and that party’s future earning capacity;

(c)    The standard of living established during the marriage;

(d)    The duration of the marriage;

(e)     The age and the physical and emotional condition of the spouse seeking maintenance; and

(f)    The ability of the spouse from whom maintenance is sought to meet his or her needs while meeting those of the spouse seeking maintenance.

As you can see, these factors are broadly defined, and judges have wide discretion to determine the amount of temporary alimony.  Therefore, it is important that you and your lawyer review all financial documents carefully and fully prepare for the temporary orders hearing.

This article is intended to serve as a very brief overview of the temporary alimony process.  You should consult with an attorney to find out how the law will apply to the facts of your case.  Call the Law Office of Kirk Garner today for your free thirty-minute consultation.

July’s Post of the Month: Testifying in Court

The judge weighs the witness's credibility.

The judge weighs the witness’s credibility.

[The following article was originally published on July 22, 2011, and was the most viewed post that month.]

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:

1. Tell the truth, the whole truth, and nothing but the truth. It is very important that you tell the truth, to the best of your ability.

2. Listen to the Question. Make sure you understand the question. If you don’t understand the question, or if the question is vague, ask for clarification. Without being difficult, you may ask, “If you’re asking my ‘X,’ then my answer is ‘Y.’”

3. Answer the Question. Don’t answer the question you wish the lawyer had asked you, answer the question that was asked. Answer only the question asked, without adding information or making commentary.

4. If the question calls for a ‘yes’ or ‘no’ answer, then answer ‘yes’ or ‘no.’

5. On the rare occasion when you can’t answer ‘yes’ or ‘no’ then say so.

6. Even when you are asked a ‘yes’ or ‘no’ question, it may be more clear for you to answer, ‘that is correct’ or ‘that is not correct.’ Lawyers don’t always frame questions precisely. For example, if you are asked, “You did not go to work on Monday, isn’t that true?” You answer, “No.” Are you testifying, “No, I did not go to work,” or is it, “No, it is not true that I did not go to work?” If you answer, “That is correct,” then everybody will understand what you mean.

7. Don’t argue. The lawyer asking you questions may be rude or insulting. She may insinuate things that upset you. Nevertheless, do not become argumentative. This is not your turn to ask questions. This is not time to have a conversation with the lawyer or anybody else.

8. Don’t get smart. When you are on the witness stand, it is not time to crack jokes or be witty. This is not the time to hurl insult or make snide comments. The judge or jury is watching your demeanor and body language, and they will judge your credibility–whether they think you are telling the truth. It is common in trials for two witnesses to give conflicting testimony: the judge or jury must decide whom to believe. If you make inappropriate comments, your testimony may be disregarded.

9. Don’t cop an attitude when the other lawyer is asking questions. Give your spouse’s attorney (or the other side’s attorney) the same respect that you showed when your own attorney was asking questions.

10. Don’t get defensive. Don’t assume the questioner is trying to trap you. Don’t infer a bad motive. The lawyer asking you questions may or may not be trying to imply something by the manner of the questions being asked. Your job is not to be defensive, it is to answer the question.

11. Don’t look for clues or an answer from the lawyer or the audience. Only one witness may testify at a time. When you are on the witness stand, you are the only person who may answer the question. Don’t look to your spouse or anyone in the audience to help you remember something.

12. If you don’t remember, say so. ‘I don’t recall’ is always the right answer if you genuinely don’t recall. If you claim you don’t recall something you should be able to remember, it may appear you are lying.

13. Don’t speculate or guess. Again, if you don’t remember, don’t try to recreate your memory. Don’t be talked into a false memory. If you didn’t see something or didn’t hear it, if you could have personal knowledge of something, then say so.

14. Your own lawyer (or in most cases the lawyer who called you to testify if you are not one of the parties) generally must ask you open-ended questions: Who? What? Why? When? How? The fact that the question is open-ended does not give you the right to go on and on with your testimony. Give a concise answer if possible. It is easier for the lawyer to ask another question if she wants more information than it is for her to stop you when you are giving too much information. Just make sure your answer is not misleading.

15. The other side’s lawyer, or the lawyer who did not call you to testify if you are not a party, may generally ask close-ended questions that call for a ‘yes’ or ‘no’ answer. This is called ‘leading the witness’ because the lawyer is stating the facts and merely asking the witness to affirm or deny those facts. “Isn’t it true that ‘X’?” “It was cloudy that day, wasn’t it?” You may feel that your ‘yes’ or ‘no’ answer is misleading. You may feel the need to explain yourself. This is not the time to do that. If you try to explain your answers, the lawyer asking questions may object and ask that you be directed to simply answer the question. If your attorney feels it would be helpful for you to explain your answers, he may ask you when it is his time to do so. Until then, answer the question you have been asked.

16. During your testimony, a lawyer might object. Something like, “Objection Your Honor, calls for speculation.” When a lawyer makes an objection, stop talking. Do not answer the question until you are told to do so. Generally speaking, if the judge sustains the objection, you will not be allowed to answer the question. If the judge overrules the objection, you will be allowed to answer. In any case, the best thing you can do is sit quietly until you are told to answer the question or the lawyer asks you another question.

17. Sometimes the judge will address you directly. She may ask you are question or give you an instruction. Listen carefully to what the judge is saying and answer the question or follow the instruction. Judges can get quite upset when witnesses refuse to follow their instructions. The judge has the power to hold you in contempt, so it is never wise to make the judge angry.

18. Don’t ask the judge if you have to answer the question. You should assume you have to answer the question unless someone says you don’t have to answer the question. There is an important exception to this rule: You do not have to answer a question that would tend to incriminate you. If you are being asked about something and your answer could be used to convict you of a crime, you may invoke your right against self-incrimination. If you are not being asked about something that could incriminate you, you will have to answer, even if the answer is embarrassing or personal.

19. Don’t talk over the lawyer asking you questions or anybody else. Wait for the lawyer to completely finish the question before you answer. Your testimony is most likely being recorded by a court reporter or a tape recorder. It is very difficult for a court reporter to accurately record what everyone is saying when more than one person is talking at a time.

20. Answer with words. That is, do not nod or shake your head: the tape recorder cannot hear your answer. Do not answer with ‘uh-huh’ or ‘nuh-uh,’ because it is very difficult to tell the difference between those two answer when your testimony is written down.

Following these guidelines will help you to effectively testify in court.

Uncontested Divorce vs. Contested Divorce

It is more likely for your divorce to be uncontested when you know your rights.

It is more likely for your divorce to be uncontested when you know your rights.

When a prospective client calls to discuss a divorce, one of the first questions I ask is whether the case is contested or uncontested.  This is especially true when people want to know how much I charge for divorce.  Uncontested divorces are much cheaper because there are no issues to be decided by a judge or mediator.  Most people hope their divorce will be uncontested, but in reality there are very few truly uncontested divorces.

The Uncontested Divorce. An uncontested divorce is one in which both spouses want the divorce.  They have discussed the issues: how the property and debts will be divided, whether maintenance will be paid and how much, where the children will live, how much child support will be paid, how much parenting time the non-custodial parent will have with the children.  Whatever the issues the soon-to-be ex-spouses face, they have discussed them and have reached an agreement.  It is very helpful for the agreement to be in writing, to prevent miscommunication and misunderstanding.  Uncontested divorces are rare because if the spouses could communicate and reach consensus, the chances are they wouldn’t be getting a divorce.

The Contested Divorce. By contrast, a contested divorce is one in which there is not an agreement on every issue in the divorce.  There are varying degrees of contested divorce.  Couples may be able to agree who will get the house, but they can’t agree where the children will reside.  Sometimes the opposite is true.  In some cases, the parties cannot agree to anything.

Assume the Case is Contested Until It is Not.  Unless I know the spouses have an agreement, it is safest for me to assume that the case will be contested.  I will take measures to safeguard my clients rights and property until an agreement is assured.  I will prepare to present my clients case in court.  By preparing for trial, you actually make it more likely that you can reach an agreement in court.  When you fail to prepare for trial, you weaken you bargaining position and risk an unfavorable result.

Know Your Rights. When discussing the subject of divorce with your spouse, it is important to know your legal rights.  You need to know what you are entitled to so that you can make a fair bargain.  Take advantage of my free thirty-minute consultations for divorce; learn what your rights are; learn what to expect of the process.  Then you can negotiate with your spouse with confidence and you will be more likely to reach an agreement that is in your best interest.  Call me today.

How Alimony Works in Colorado, Part 1.

Temporary spousal maintenance is designed to equalize the finances until the divorce is final.

Temporary spousal maintenance is designed to equalize the finances until the divorce is final.

Alimony is a payment of money from one spouse to another for the purpose of financial support or equalization of incomes. In Colorado, alimony is technically called “spousal maintenance.” There are two kinds of spousal maintenance: temporary and permanent. Temporary maintenance is the payment of money from one spouse to the other before the marriage has been dissolved (i.e., before the divorce is final). Permanent maintenance–what most people think of when they hear the term “alimony”–is the payment of money from one former spouse to the other after divorce.

In this article, I will discuss temporary maintenance when the spouses earn a combined annual income of $75,000 or less. In future articles, I will discuss 1) temporary maintenance when combined annual income exceeds $75,000; 2) permanent maintenance; and 3) other aspect of alimony, including modification, termination, and tax treatment.

Historically, the calculation of alimony has been very subjective. Based upon the same facts and income, different judges will regularly calculate and award different amounts of alimony. This creates a lack of certainty and predictability in the courts, and makes it hard for divorcing couples to plan for the future. To make the award of temporary maintenance more uniform, the Colorado legislature developed a guideline for couples whose combined annual income does not exceed $75,000. In these situation, it is a rebuttable presumption that for temporary maintenance (again, alimony paid before the divorce is final), the spouse with the higher income should pay an amount equal to forty percent of his or her income, minus fifty percent of the earnings of the spouse with the lower income.

Example #1. Let’s say that Bob earns an average of $4,000 per month, and Emily earns $2,000 per month. Forty percent of Bob’s income is $1,600, minus fifty percent of Emily’s income, which is $1,000, equal $600. Until the divorce is final, it is presumed that Bob should pay to Emily $600 per month.

Note first of all that this does not entirely equalize the spouses’ income: Bob is left with $3,400 per month, and Emily has $2,600. Secondly, while this formula adjusts income, it does not affect the payment of debts and expenses: the judge will still have to apportion which spouse will pay which monthly expenses. In many cases, the amount of expenses a party has to pay has a greater affect on their discretionary income than the amount of temporary maintenance they have to pay, or that they receive.

Example #2. Paul earn $1,000 per month, Lois earns $5,000. Forty percent of Lois’ income is $2,000, minus fifty percent of Paul’s income, which is $500, equals $1,500.  The presumptive temporary maintenance would have Lois paying Paul $1,500 per month.

Example #3. Sam earns $2,500 per month, Alice earns $2,000. Using the temporary maintenance formula, neither party would have to pay temporary alimony. (Forty percent of 2,500 is 1,000, fifty perent of 2,000 is 1,000. 1,000 – 1,000 = 0.)

It is important to keep in mind that this temporary maintenance formula (for combined income which does not exceed $75,000) creates a rebuttable presumption in favor of the calculated amount. That means that either party may seek a different amount of temporary alimony if they can show that the formula is somehow unfair. If you are able to persuade the Court, then the amount of temporary maintenance may be either higher or lower than the result of the formula.

In the next article, I will discuss how the courts calculate temporary maintenance when the parties have a combined annual income of more than $75,000. In future articles, I will discuss permanent maintenance and other aspects of Colorado’s alimony laws.

As you can see from this article, the law of alimony in Colorado is complicated and subjective. Contact the Law Office of Kirk Garner today to discuss whether you could be entitled to alimony; or find out how much you might have to pay your spouse.

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.

2.  Be realistic.  Life after divorce–no matter how attractive it seems when you are stuck in an unhappy marriage–will not be a cake walk.  Remove your rose-colored glasses.  Be realistic about your situation, your capabilities and limitations.  Discuss your plans with friends, relatives, and your lawyer.  Seek honest feedback from those you trust.  Do your friends think your goals and plans are achievable and realistic?

Your plan will be dependent on the law as applied to the facts of your case.  In order to formulate a plan, you will need to know how the courts would likely rule on the facts of your case.  Thus, it is important to seek the advice of an experienced attorney early on.

3.  Be flexible.  No matter how good your plan is, it must be flexible.  You must be able to adapt to unforeseeable situations.  If your plan includes keeping the house and having full custody of the children, how will you adapt if the judge awards the home to your spouse, or if you have to share custody?  What if your spouse’s child support is higher than you anticipated?  What if you lose your job? What if it turns out your expenses are more than you anticipated?

If you are inflexible, then you will perceive any setback–whether great or small–as a major defeat.  If your plan is rigid, you will never be happy with the result of the divorce, even if you are awarded 95% of what you set out to achieve.

Remember the goal: a happy life after divorce.  Make a plan for the future:  be as detailed as possible.  Make sure your vision of the future is realistic and achievable.  Always be flexible because your plans will need to change as your situation changes.

If you need help formulating your plan for life after divorce, call me.  Set up your free thirty-minute consultation today.