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Family Law & Mediation Attorney in Longmont, CO

 

Family Law

Family Law is a multi-faceted area of law that deals with family relations. Family law encompasses such areas as: adoption, child custody and visitation, children's rights, child support, spousal support (maintenance or alimony), separation agreements, civilian and military divorce (dissolution of marriage), legal separation, marital property division (equitable division), pre-marital (pre-nuptial) agreements, marriage, annulment (declaration of invalidity) and other legal issues pertinent to the family.
Family law courts generally hear cases pertaining to dissolution of marriage, legal separation of the parties, nullity of marriage, child custody, child and spousal support, and similar legal issues.
James A. Lionberger believes that it is important to make decisions based on facts, and encourages his clients to avoid positions based solely on emotion. Other than children's issues, family law matters are truly regarded by the courts as business decisions, with "marital misconduct" removed from the Court's consideration. It is imperative to adequately investigate and develop the financial circumstances of the parties, including but not limited to incomes, expenses, assets, debts and potential income (if one is voluntarily unemployed or underemployed).
There is an important "legal fiction" applicable to family law cases: generally speaking, funds earned or debts incurred during the marriage belong to the marriage. Individual title to assets or debts is not determinative to the division of such assets or debts. For example, the increase in the value of a retirement plan such as a 401(k) or IRA that occurred during the marriage, although titled only in the name of one spouse, is marital property and will be considered by the court in determining a division of marital property.
Last, Colorado is not like Texas or Arizona, which are "community property" states. Our courts are not limited to an "equal" division of marital property. Colorado is described as an "equitable division" state, meaning that our judges have great discretion to allocate property (including debts) in a manner felt to be fair or equitable. Our judges often make a "disproportional" (unequal) division of property between spouses.

It is because of this considerable discretion granted to Colorado judges that an attorney experienced in family law is extremely important in evaluating and presenting cases to the court, and in determining reasonable positions for purposes of settlement
 
Mediation
Mediation is the process by which the parties to a dispute seek to resolve their differences in a way other than allowing a judge to make a decision for them. This consensual, self-determination of issues gives the parties greater freedom to “tweak” the outcome to specifically address matters that are more important to each party, yet which our Courts are not particularly adept. In this way the contestants work together to craft an outcome to which they both agree, as opposed to an outcome thrust upon them by a third party (Judge).

At the University of Missouri Law School, the professors were fond of saying, “A good settlement is one that neither party likes, but both parties can live with.” This is the essence of mediation. The parties, through a method of negotiation and compromise, arrive at decisions that are not exactly what they want, but better than the possible results should the matter have been tried to the Court. It is important to note that, while it is given a separate title (mediation), it is, in essence, and form of negotiation, assisted by a third party.

The entire process of mediation (and negotiation, for that matter) is privileged and confidential. That is, the statements made, and offers extended, in mediation may not be repeated to the Court unless they result in an agreement, reduced to writing and signed by the parties. There is no such thing as a verbal mediation agreement in Colorado, absent extenuating circumstances.[1]

This means a participant to mediation may make an offer of settlement, or a number of offers of settlement, and not be bound by said offers, or even have said offers repeated to the Court, should mediation be unsuccessful. This is not an area in which the Court will allow testimony of what transpired in mediation to be presented “through the back door”, or by any means whatsoever. The Courts jealously guard the mediation privilege, as they know that mediation is a setting in which a significant number of cases are settled. The Courts do not want to hear cases: Judges do not want to decide cases if they can avoid it, as Judges agonize over decisions, just as the litigants do also.
There should be a few precepts when considering the merits of trial versus a mediated resolution:
  • no attorney can guarantee a result at trial, other than the guarantee that the client will incur more attorney's fees
  • in most family law cases, especially custody matters, the parties will have one, perhaps two, days to try their case to the Judge. It is probable that the litigants will know more about the facts of the case than will the Judge (after one or two days of a contested trial), so it could be argued that a trial lets the least informed person in the Courtroom make the most important decision. Mediation presents a more rational way for decisions to be better tailored to the needs of the parties.
 
 
 
Any information on this site does not constitute legal advise. Give us a call to book an appointment to speak to the attorney