In 2013 COA 77. No. 11CA1940. In re Petition of R.C., Petitioner appealed a district court’s order denying his petition to seal records of non-traffic offense charges brought against him that were subsequently dismissed. The Court of Appeals reversed the order and remanded the case with directions.  Petitioner was charged with possession of marijuana (a class 2 petty offense), possession of drug paraphernalia (a class 2 petty offense), and unsafe lane change. After successful completion of a juvenile diversion program, all of the charges were dismissed with prejudice.

Petitioner appealed and argued that the court erred when it denied his petition to seal his records after all of the charges against him were dismissed with prejudice. Although CRS § 24-72-308 specifically prohibits the sealing of traffic infractions, the statute does not appear to contemplate petitions to seal records for cases that include both traffic offenses and non-traffic offenses. Therefore, if the district court “finds that the harm to the privacy of the petitioner or dangers of unwarranted adverse consequences to the petitioner outweigh the public interest in retaining the record” as to the drug offenses, it should seal the criminal records as to those charges. Therefore, the order was reversed and the case was remanded for further proceedings consistent with this opinion.

For a free telephone consultation with experienced Colorado lawyers to seal criminal records, give us a call today at 303-688-3045 or contact our records sealing lawyers in Douglas County.

Often times, employers are faced with the reality of having to either fire an employee for substandard performance, terminate the employment due to a precarious financial situation, or replace an employee who left or quit.  While all of these scenarios ultimately result in the employee’s departure, how an employer terminates the employment of an employee can have significant financial consequences for the business.  Likewise, the circumstances of departure will dictate any potential financial recovery for the terminated employee.  This article briefly discusses the basics of Colorado law as it relates to various employment claims, including wage claims, unemployment benefits, and charges of discrimination, which often arise when the separation from employment is involuntary.

As an initial matter, under Wisehart v. Meganck, 66 P.3d 124, 126 (Colo. Ct. App. 2002):

In Colorado, an agreement of employment that is for an indefinite term is presumed to be at will. Either the employer or the employee may terminate at-will employment at any time with or without cause, and such termination generally does not give rise to a claim for relief. Martin Marietta Corp. v. Lorenz, 823 P.2d 100 (Colo.1992); Continental Air Lines, Inc. v. Keenan, 731 P.2d 708 (Colo.1987).  Accordingly, an employer is not liable for wrongful discharge unless of the following exceptions to the at-will doctrine is the basis for termination:

•  “wrongful discharge based on discrimination with respect to race, color, gender, national origin, ancestry, religious affiliation, disability, and age. State statutes also permit such claims in cases of termination resulting from an employee engaging in lawful activity off premises during nonworking hours, responding to a jury summons, and certain activities of “whistleblowing.” Wisehart. 66 P.3d at 127.  (Note:  This topic is discussed in further depth below)

• Colorado also recognizes a claim for relief for wrongful discharge in violation of public policy. This judicially crafted exception restricts an employer’s right to terminate when the termination contravenes accepted and substantial public policies as embodied by legislative declarations, professional codes of ethics, or other sources.  Wisehart v. Meganck, 66 P.3d 124, 127 (Colo. Ct. App. 2002)

• Colorado also recognizes that an employer’s failure to follow termination procedures contained in an employment manual can serve as the basis for a breach of contract or promissory estoppel claim. Wisehart v. Meganck, 66 P.3d 124, 127 (Colo. Ct. App. 2002) citing Continental Air Lines, Inc. v. Keenan, supra; see also Schoff v. Combined Insurance Co., 604 N.W.2d 43 (Iowa 1999); Mackenzie v. Miller Brewing Co., supra.

• In addition, Colorado recognizes the viability of certain other tort claims that arise around the employment relationship. Wisehart v. Meganck, 66 P.3d 124, 127 (Colo. Ct. App. 2002) discussing Jet Courier Service, Inc. v. Mulei, 771 P.2d 486 (Colo.1989)(employee owes duty of loyalty to employer that prohibits soliciting employer’s customers before terminating employment); Berger v. Security Pacific Information Systems, Inc., 795 P.2d 1380 (Colo.App.1990)(employee induced to enter into at-will employment by employer’s concealment may pursue fraud claim); Cronk v. Intermountain Rural Electric Ass’n, 765 P.2d 619 (Colo.App.1988)(tortious interference claim allowed against supervisor who induced employer to exercise its at-will termination power by presenting corrupt reason).

To summarize, employers operating under at-will employment principles are generally free to discharge employees for any reason as long as the reason asserted does not trigger a recognized exception to the at-will termination doctrine noted above. Moreover, the burden of proof is on the employee to plead and prove circumstances that would authorize application of one of the recognized exceptions to the doctrine. Wisehart v. Meganck, 66 P.3d 124, 127 (Colo. Ct. App. 2002) citing Schur v. Storage Technology Corp., 878 P.2d 51 (Colo.App.1994).

Wages

All employees are entitled to timely payment of wages, both before and after separation from employment.  It is important to note, however, who is considered an “employee” and what employers are covered by the Colorado Wage Act (“Act”).  First, the Act only applies to private sector employees.  The Act does not apply to the state, or its agencies or entities, counties, cities, municipal corporations, quasi-municipal corporations, school districts, or districts organized and existing under the laws of Colorado.  C.R.S. § 8-4-101(5).  Secondly, independent contractors are not covered by the Act.  C.R.S. § 8-4-101(4).  To recover under the Colorado Wage Act (“Act”), the claimant must show by a preponderance of the evidence that (1) the claimant was an “employee” within the meaning of the Act during the time period for which the wages are claimed; (2) the amount claimed constituted “wages” or “compensation” under the Act; and (3) the wages or compensation were “earned, vested, and determinable” at the time of separation from service.  Michael J. Guyerson and Christian C. Onsager, Colo. Law. 63, Vol. 46, No. 5 (May 2007).  The definition of “wages” or “compensation” can be found at C.R.S. § 8-4-101(8)(a).  Note, however, that severance pay is not included. C.R.S. § 8-4-101(8)(b).

However, the Act only requires employers to pay wages and compensation that is “earned” at the time of separation from employment.  Hofer v. Polly Little Realtors, Inc., 543 P.2d 114 (Colo. App. 1975) (emphasis added).  Moreover, the Act does not provide a substantive right to compensation; it is merely an enforcement mechanism for whatever terms the parties have agreed upon. Barns v. Van Schaack Mortgage, 787 P.2d 207, 210 (Colo. App. 1990).

For additional information, please see C.R.S. § 8-4-101 et seq.

Unemployment Benefits 

An employee who believes (s)he was terminated through no fault of his/her own, will likely seek compensation from the employer in the form of unemployment benefits.  The administration of unemployment awards are handled by the Colorado Department of Labor and Employment.  Claims can be filed online at www.colorado.gov/cdle.  Under Colorado law and according to the Colorado Department of Labor and Employment, in order for a former employee to be eligible for unemployment benefits, (s)he must (1) have earned $2,500 during her “base” period (see CDLE website for assistance with this calculation); (2) be unemployed through no fault of her own; and (3) be able, available, and actively seeking work.  C.R.S. § 8-73-107 puts further requirements in place for individuals to continue receiving these benefits on a weekly basis.

In determining whether to grant a benefits award, the CLDE is guided by the following considerations:

1. Unemployment insurance is for the benefit of persons unemployed through no fault of their own
2. Each eligible individuals who is unemployed through no fault of their own is entitled to receive a full award of benefits
3. Every person has the right to leave any job for any reason, but that the circumstances of the separation shall be considered in making a determination of benefits
4. Certain acts of individuals are the direct and proximate cause of their unemployment, and such acts may result in such individuals receiving a disqualification

C.R.S. § 8-73-108(1)(a).

Benefits information is provided in C.R.S § 8-73-108(b).  A description of a “full award” of benefits can be found at C.R.S. § 8-73-108(4), while the factors that may lead to disqualification of an individual can be found at C.R.S. § 8-73-108(5).  Careful consideration must be given before an employee takes a distribution from a retirement account during the period of time (s)he is seeking unemployment benefits.  Such action may reduce the amount of weekly benefits considerably, and may postpone the receipt of benefits for a significant period of time.  Please review C.R.S. § 8-73-110 for further details.  Individuals who are considering supplementing their unemployment income from retirement assets should consult an attorney prior to doing so.

Discrimination

This section will provide a brief overview/summary of the Colorado Anti-Discrimination Act (“CADA”) only.  Individuals may be entitled to additional protection and remedies under applicable Federal Acts, such as FMLA or Title VII, for example.  Former employees of larger businesses (15 or more employees) or other “covered” business are encouraged to review the applicability of these protections, in addition to pursuing state law claims under CADA.  Discriminatory or unfair employment practices are regulated by the Colorado Department of Regulatory Agencies (“DORA”).  The DORA website offers a wealth of information to consumers and employers, and provides information on how to file a claim of discrimination: www.askdora.colorado.gov/.

CADA offers the same type of protection to employees as those offered by Title VII, but it applies to “employers” with two or more employees: “Employer” defined as the state of Colorado or any political subdivision, commission, department, institution, or school district thereof, and every other person employing persons within the state; but it does not mean religious organizations or associations, except such organizations or associations supported in whole or in part by money raised by taxation or public borrowing.  C.R.S. § 24-34-401.

Under CADA:

“(1) It shall be a discriminatory or unfair employment practice:

(a) For an employer to refuse to hire, to discharge, to promote or demote, to harass during the course of employment, or to discriminate in matters of compensation, terms, conditions, or privileges of employment against any person otherwise qualified because of disability, race, creed, color, sex, sexual orientation, religion, age, national origin, or ancestry…”

C.R.S. § 24-34-402

In order to prove intentional discrimination under section 24–34–402, a complainant must first establish, by a preponderance of the evidence, a “prima facie” case of discrimination:

(1) an employee must show that (s)he belongs to a protected class;

(2) the employee must prove that (s)he was qualified for the job at issue.;

(3) the employee must show that (s)he suffered an adverse employment decision despite his/her qualifications; and

(4) the employee must establish that all the evidence in the record supports or permits an inference of unlawful discrimination.

Bodaghi v. Department of Natural Resources, 995 P.2d 288, 297 citing Colorado Civil Rights Commission v. Big O Tires, Inc., 940 P.2d 397 (Colo. 1997).

If a complainant meets this burden, the burden of production shifts to the employer to articulate “some legitimate, non-discriminatory reason for the employment decision.”  Once employer meets this burden, Complainant must then demonstrate by “competent evidence” that the “presumptively valid” reasons for the employment decision were in fact pretext for discrimination.  Big O Tires, Inc., 940 P.2d 397; Bodaghi, 995 P.2d 288.  NOTE: the ultimate burden of persuading the trier of fact that the employer intentionally discriminated against the complainant remains squarely with the complainant.  Bodaghi v. Department of Natural Resources, 943 P.2d 1 (Colo. Ct. App. 1996).

If the determination is made that the employer engaged in discriminatory employment practices, Colorado law authorizes a variety of relief (which may be ordered singly or in any combination), including back pay, hiring, reinstatement, or upgrading of employees, with or without back pay; the referring of applicants for employment by any respondent employment agency; the restoration to membership by any respondent labor organization; the admission to or continuation in enrollment in an apprenticeship program, on-the-job training program, or a vocational school; the posting of notices; and the making of reports as to the manner of compliance.  C.R.S. § 24-34-405.

By Lindsay J. Miller, Esq.  

Hamil v. Cheley Colorado Camps, Inc.

The facts of the Hamil case are fairly straight-forward.  The horse-back rider was a minor (Hamill) who had been to the Cheley Colorado Camp for summer camp in 2002, 2003, and 2004.  Before attending camp each year, Hamill and parents both signed a liability/risk agreement that contained an “exculpatory clause” (which reads in pertinent part):  “I, on behalf of myself and my child, hereby release and waive any claim of liability against Cheley with respect to any injury…occurring to my child while he/she participates in any and all camp programs and activities.  I agree to indemnify and hold harmless Cheley…with respect to any claim asserted by or on behalf of my child as a result of injury… I HAVE READ AND UNDERTAND THE ABOVE AND AGREE TO BE BOUND BY THE TERMS OF THIS DOCUMENT.”  The agreement ends with the following statement: “I give permission for my child to participate in all camp activities, including those described above.  I acknowledge and assume the risks involved in these activities, and for any damages, illness, injury or death…resulting from such risks for myself and my child.”  Hamill at *2 (emphasis added).  Hamill and her parents signed the agreement.

In July 2004, when Hamill was 15 years old, she fell from a Cheley horse and broke her arm.  Hamill sued Cheley for negligence and gross negligence, arguing that a Cheley wrangler had improperly saddled her horse.  The lower District Court granted Cheley’s motion for summary judgment on the two negligence claims, ruling that although Hamill was a minor, the agreement barred her claims and that there was no gross negligence as a matter of law. Hamill at *1.  Hamill appealed the ruling, arguing that because she was a minor and her mother did not make an informed decision, the agreement did not bar her negligence claims (and that there were material facts that precluded summary judgment on her gross negligence claim).  The Colorado Court of Appeals disagreed, and affirmed the District Court judgment.

Validity of Exculpatory Agreement

The Colorado Court of Appeals first reviewed the validity of the exculpatory agreement by examining the four factors set forth in Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981) and reiterated again in B&B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998) (and then used these factors to go through the Hamill agreement):

1. First and Second Factors – “Duty” and “Nature of Service”
   1. The Colorado Supreme Court has previously ruled that “businesses engaged in recreational activities that are not practically necessary, such as equine activities, do not perform services implicating a public duty.” Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 469 (Colo. 2004).  Additionally, horse-back riding is “not a matter of practical necessity for even some members of the public,” and is “not an essential service.” Jones, 623 P.2d at 377-78; see also Chadwick, 100 P.3d at 467; Day v. Snowmass Stables, Inc., 810 F.Supp. 289, 294 (D. Colo. 1993).   Further, C.R.S. 13-21-119 limits the civil liability of those involved in equine activities = riding is a matter of choice, not necessity.
2. Third Factor – “Fairness”
   1. The Court of Appeals in Hamill recognized that a contract is fairly entered into if one party is not so obviously disadvantaged with respect to bargaining power that the resulting contract essentially places him at the mercy of the other party’s negligence.  Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo. 1989).  Here, horseback riding was found not to be an essential activity and Hamill’s mother not at “mercy” of Cheley’s negligence when signing the agreement.  Further, Hamil’s mother admitted to voluntarily signing the agreement specifically giving permission for Hamil to participate in horseback riding activities (Note, however: Wycoff v. Grace Community Church, Nos. 09CA1151, 09CA1200 & 09CA1222 (Colo. App. Dec. 9, 2010), waiver insufficient to allow parents to assess the degree of risk involved and extent of possible injuries because it did not describe the activity that resulted in injury).  Hamill’s mother also testified that Hamill had previously attended other camps, and that horseback riding services were offered (and experienced) elsewhere.
3. Fourth Factor – “Intention of the Parties”
   1. When reviewing a contract, the Court must enforce the plain meaning of the contract terms. USI Properties East, Inc. v. Simpson, 938 P.2d 168, 172 (Colo. 1997); B&B Livery, Inc., 960 P.2d at 136.  In Hamill, contract was unambiguous.  The next inquiry was whether the exculpatory agreement clearly evidences the parties’ intentions, which requires an examination of current case law and statute.  Similar cases say YES – in B&B Livery Inc, the agreement at issue was written in plain, clear terms, was not overly long; Plaintiff admitted she didn’t really read the agreement, but Court said while they cannot be certain she would have signed after reading and studying the agreement, there is no dispute Plaintiff intended to grant a general release to B&B.  There was a similar situation in Chadwick – no legal jargon, not inordinately long, included statutory release for inherent risks, language releasing defendant from “any legal liability,” no other way to interpret other than an intent to release from “any” liability caused by or resulting from plaintiff’s participation in the activity.  Additionally, parties can contract to release activity sponsors “even from negligent conduct, as long as the intent of the parties is clearly expressed in the contract.” C.R.S. 13-21-119(4)(b); B&B Livery, Inc.  Here, the Hamill agreement is similar to B&B and Chadwick.  The total length of agreement was 3.5 pages, contained minimal legal jargon, had the statutory release language of CRS 13-21-119, and identified risks associated with horseback riding; contained broad intent to release claims of liability for “any injury”, included all degrees of potential injury.  Hamil and her parents signed the release and also signed agreements containing the same language each of the previous two years.   The agreement sufficiently put Hamil and her parents on notice that equipment may malfunction, break, or fall, and that counselors may misjudge circumstances.    The breadth of the release persuaded the Court that the parties intended to disclaim legal liability for negligence claims.  The agreement with such “plain and unambiguous terms” will not fail because one of the parties, in hindsight, now claims to have misunderstood the scope of the agreement.  Hamill at *3-4.

“Informed Consent” under C.R.S. § 13-22-107

In Cooper v. Aspen Skiing Co., the Colorado Supreme Court held that it was against public policy for parents to prospectively waive liability on behalf of their minor children. 48 P.3d 1229 (Colo. 2002).  In 2003, the General Assembly superseded Cooper by enacting 13-22-107, which allows parents to “release or waive the child’s prospective claim for negligence,” and declares that “parents have a fundamental right to make decisions on behalf of their children, including deciding whether the children should participate in risky activities.” Wycoff —P.3d at —; 13-22-107(1)(a)(I)-(V).  The statute does NOT, however, allow the parent to waive a child’s prospective claim for “willful and wanton…reckless…or grossly negligent” acts or omissions.” 13-22-107(4); Wycoff.  Here, the Court found that the General Assembly required the consent to waiver by a parent to be “voluntary and informed.” Wycoff; Vigil v. Franklin, 103 P.3d 322, 327 (Colo. 2004); Boles v. Sun Ergoline, Inc., 223 P.3d 724 (Colo. 2010).  A parent’s decision is “informed” when the parent has sufficient information to assess the potential degree of risks involved, and the extent of possible injury. Wycoff; Black’s Law Dictionary 346 (9^th ed. 2009).

Unlike the situation in Wycoff, where child was injured while being pulled behind an ATV on a frozen lake and mother did not know her child would be engaging in such an activity, here, the undisputed facts demonstrated that Hamill’s mother knew the activities that Cheley offered.  Hamill had attended Cheley and ridden the camp horses for two years prior to the incident, and the agreement clearly indicated that horseback riding was an activity made available to campers.  The Cheley agreement contained language envisioned negligence.  Hamill’s mother claimed she “skimmed” the document prior to signing, which she also did in 2002 and 2003, indicating that she understood the risks she was accepting on behalf of her child.  In fact, Hamill’s mother admitted that the first time she had “thoroughly” read through the document was in her attorney’s office in 2009, well after the accident.  Her signature on the document indicated that she had read and understood the terms of the agreement and agreed to be bound by them; failing to read them is not a defense.  The Court further found that the agreement did not need to set forth an “exhaustive list of particularized injury scenarios to be effective.” Hamill at * 6.

Gross Negligence

Exculpatory agreements are not a bar to civil liability for gross negligence.  Jones, 623 P.2d at 376; Forman v. Brown, 944 P.2d 559, 564 (Colo. App. 1996).  “Gross negligence” is willful and wanton conduct; action committed recklessly, with conscious disregard for the safety of others. Forman, 944 P.2d at 564.  Here, the evidence demonstrated that a wrangler checked Hamill’s saddle 2-3 times before the ride, and was again checked for a proper fit after Hamill was asked to mount and dismount prior to the ride.  There is no evidence that the wrangler was “willfully incompetent,” purposely caused the saddle to slip, or recklessly disregarded the appropriate way to tack the horse. Hamill at * 7.

If you have a Colorado equine law or Colorado equestrian law matter and want to speak with a seasoned attorney with over 18 years of experience in these unique areas of the law, call Marc Patoile of Folkestad Fazekas Barrick & Patoile, P.C., at 303-688-3045 for a free initial telephone consultation today!

HB1240 Penalties for Persistent Drunk Drivers

This bill is a good example of how the Colorado legislature builds coalitions and compromises.  This bill comes out of a short list selected by Denver DUI lawyers together with the Interagency Task Force on Drunk Driving.

The law lowers the definition of “persistent drunk driver” in Colorado from  BAC of 0.17 or more to 0.15 or more. The bill also amends the definition of “persistent drunk driver” to include a person who refuses to take or complete, or to cooperate in the completing of, a test of his or her blood, breath, saliva, or urine as required by law.

A person whose privilege to drive was revoked for one year or more because of a second or subsequent Colorado DUI, DUI per se, or DWAI conviction will now be able to apply for a interlock license after one month, at least for persons 21 years of age or older at the time of the offense. In cases of a refusal , the waiting period is reduced to 2 months from 1 year.  Individuals under revocation will be able to apply for an interlock license after January 1, 2014, in Colorado DUI cases.

The bill also allows access to the First Time Drunk Driving Offender account to pay a portion of the costs for an ignition interlock device for a persistent drunk driver who is unable to pay the costs of the device and who installs the ignition interlock device on his or her vehicle on or after January 1, 2014.

If you have questions about Colorado DUI laws or are facing DMV suspension issues, call an experienced Denver DUI lawyer today at 303-688-3045 or contact one of our experienced DUI attorneys located in Douglas County today for a free telephone consultation.  Our lawyers practice throughout the Denver metro area.

For full text of the bill:

http://www.leg.state.co.us/clics/clics2013a/csl.nsf/fsbillcont3/B29DA419B495F5F287257AEE00574433?Open&file=1240_01.pdf

For questions about reinstatement or suspension issues it is critical to talk to an experienced DMV lawyer as quickly as possible, as many hearings are time barred for not being timely requested.  Our attorneys handle cases throughout the Denver area, call one of our Douglas County lawyers for a free telephone consultation at 303-688-3045 if you are facing Colorado driver’s license issues or looking to reinstate driving privileges suspended as a result of:

Alcohol offenses (DUI & DWAI)
Aggravated motor vehicle theft
Child support
Commercial Driver Licenses
Denied licenses due to suspensions in other states & denied identification cards
Driving under suspension & extensions
Failure to stop and render aid in an accident
Felonies involving use of a vehicle
Habitual Traffic Offender
Ignition Interlock
Insurance
Judgments
Physical/Mental
Minors & Possession of Alcohol Offenses
Owner of car used in 2 DWAIs or DUIs
Points
Vehicular assault & vehicular homicide

A civil union affords the parties similar rights and responsibilities to those of a married couple.  Also, the law in Colorado that outlines the procedures and rights applicable to divorcing parties, which now, in most part, also applies to parties seeking to dissolve a civil union.

The new law in Colorado allows parties seeking to dissolve a civil union to have the same access to the court system to divide property and allocate parental responsibilities, as are applied in a dissolution of marriage action.  Matters such as division of property, division of debts, parenting time, decision making over minor children, child support and maintenance are issues which can be resolved by the Colorado courts, similar to a divorce.  Of course, many jurisdictions will continue to require mediation prior to a court hearing, as has been the requirement in dissolution of marriage actions, at least in most of the Denver Front Range counties.

The new laws also make the adoption process much easier for non-parent parties in a civil union.  Laws existed in Colorado for a “second parent adoption” which allowed both opposite-sex but unmarried and same-sex couples to legally adopt children, but the waters have been muddy prior to the civil union law.  Also, it will allow, in some cases, a child born to one of the parties during the term of the civil union to become the legal child of both parties without having to undergo the adoption process, as was the presumption of children born during a marriage.

For a full text of the Colorado Civil Union Act, please click on the following link:  http://www.leg.state.co.us/clics/clics2013a/csl.nsf/fsbillcont3/35CE5FDC5F040FF487257A8C0050715D?open&file=011_enr.pdf

Effective May 1, 2013, among other rights, benefits and protections, the Colorado Civil Union Act provides that parties to a civil union in Colorado are granted the following:

• Dependent coverage under health insurance policies for plans issued, delivered, or renewed on or after January 1, 2014;

• Dependent coverage under life insurance for plans issued, delivered, or renewed on or after January 1, 2014;

• Prohibitions against discrimination based upon spousal status;

• Survivor benefits under and inclusion in workers’ compensation laws;

• The right of a partner in a civil union to be treated as a family member or as a spouse under the “Colorado Employment Security Act” for purposes of unemployment benefits;

• Eligibility for family leave benefits;

• The ability to insure a party to a civil union under group benefit plans for state employees;

• The ability to designate a party to a civil union as a beneficiary under the state public employees retirement SB13-01 system;

• Survivor benefits under local government firefighter and police pensions;

• Protections and coverage under domestic abuse and domestic violence laws; and

• The ability to file a claim based on wrongful death, emotional distress, loss of consortium, dram shop, or other laws, whether common law or statutory, related to or dependent upon spousal status.

If you require have questions regarding a civil union, dissolution of a civil union, or matters arising out of a civil union, our seasoned team of family law, estate planning, and employment law attorneys are here to help.  Please call us at 303-688-3045 for a free telephone consultation.

The roles of Guardian ad Litem, CFI’s and Parental Responsibilities Evaluators have evolved over time in Colorado.  At the time of this writing, pursuant to Colorado Revised Statutes Section 14-10-116.5, upon request of either party or upon the court’s own motion a CFI may be appointed. The court determines the scope of the child and family investigator’s appointment, which is often based upon the lawyer’s or court’s drafting of the order of appointment.

The role of the CFI is to investigate, report and make recommendations to the court on issues outlined in the order of appointment that affect the best interests of children involved in the domestic relations case. The CFI shall file a written report with the court and may be called as a witness.

Individuals interested in practicing as a CFI must complete the affidavit process through the State Court Administrator’s Office (“SCAO”). If an applicant is accepted, that person will be placed on the statewide roster. It is up to the individual judicial districts to establish their own rosters of CFIs authorized to practice in their district based on the statewide eligibility roster.  The selection of a seasoned and qualified CFI is critical to a case.

The divorce attorneys in the Douglas County based firm Folkestad Fazekas Barrick & Patoile, P.C., have been helping families in divorce for over 40 years.  Call one of our divorce lawyers today for a free consultation at 303-688-3045 or contact us.

Colorado law approaches divorce as an allocation of assets and a division of debts, which are not effected by fault; however fault issues may come into play if children were affected by the actions or if it affects a parent’s ability to parent.

Colorado divorce judges don’t inquire into the reasons for the divorce,  but that is not to say that they aren’t obviously an important part of the emotional process and, sometimes, play a role in the legal process when children are involved or where there has been what Colorado courts have termed “waste of the marital estate.”

Contact one of our seasoned divorce lawyers today at Folkestad Fazekas Barrick & Patoile, P.C., with offices in Douglas County and serving the entire Denver Front Range area at 303-688-3045 for a free telephone consultation on your no fault divorce issues or other concerns.

IRS Tax Tip 2013-09 reads:

1. Exemptions reduce taxable income.  There are two types of exemptions: personal exemptions and exemptions for dependents. You can deduct $3,800 for each exemption you claim on your 2012 tax return.
2. Personal exemptions.  You usually may claim one exemption for yourself on your tax return. You also can claim one for your spouse if you are married and file a joint return. If you and your spouse file separate returns, you may claim the exemption for your spouse only if he or she had no gross income, is not filing a joint return and was not the dependent of another taxpayer.
3. Exemptions for dependents.  Generally, you can claim an exemption for each of your dependents. A dependent is either your qualifying child or qualifying relative. If you are married, you may not claim your spouse as your dependent. You must list the Social Security Number of each dependent you claim on your return. See Publication 501, Exemptions, Standard Deduction, and Filing Information, for information about dependents who do not have Social Security numbers.

Divorcing couples or those parents who are involved a child custody case often ignore this issue, but it is an issue that can have significant financial ramifications for many years following the dissolution of their marriage.

The Colorado child support statute, Colorado Revised Statutes Section 14-10-115, is the provision where the state law concerning the parents’ allocation of the dependency exemption for tax purposes can be found.  Colorado Revised Statutes Section 14-10-115(12) states::

Unless otherwise agreed upon by the parties, the court shall allocate the right to claim dependent children for income tax purposes between the parties. These rights shall be allocated between the parties in proportion to their contributions to the costs of raising the children. A parent shall not be entitled to claim a child as a dependent if he or she has not paid all court-ordered child support for that tax year or if claiming the child as a dependent would not result in any tax benefit.

The phrase “shall be allocated between the parties in proportion to their contribution to the costs of raising the children” is not otherwise defined under the statute.  An experienced family law attorney can help clarify this phrase and how it is interpreted by judges and Denver family law attorneys.  The experienced family law attorneys at Folkestad Fazekas Barrick & Patoile, P.C., can help you today.  Call one of our divorce lawyers now at 303-688-3045 for a free telephone consultation about dependency exemptions in divorce or any other issues you may have with your Colorado divorce.