How much Alimony am I Entitled to?

In Colorado, alimony is now called by the more politically correct term “spousal maintenance.”  The amount is not nearly as hard and fast as most people imagine.  The Courts prefer that divorcing or separating couples reach agreement on the amount privately and not at the mercy of the Court, who does not know their situation nearly as well as the couple themselves do.

Nevertheless, there is a presumption, which is merely a guideline rather than a figure set in stone, in Colorado regarding spousal maintenance.  The presumption only technically applies when the combined income of the couple is $75,000.00 or less annually.  This presumptive formula is 40% of the higher earning spouse’s income minus 50% of the lower earning spouse’s income.  To illustrate, suppose the husband earns $2,500.00 per month and the wife earns $1,500.00 per month.  40% of the husband’s income is $1,000.00 per month.  50% of the wife’s income is $750.00 per month.  Hence, maintenance would presumptively be $1,000.00 minus $750.00, or $250.00 per month.   

For higher income earners, there is a presumption that neither spouse has a right to maintenance.  However, in many cases, one spouse could use some help getting a fresh start financially.  Often, the same formula is used as a starting point.  Because certain details can make all the difference, an attorney should be consulted regarding your particular situation.  Otherwise, the parties could be in for a major surprise in Court. 

What is a Power of Attorney?

A POA allows a person of your choosing (your agent) to legally sign for you. A POA can cover financial decisions, medical decisions or both. In most cases, your agent will only act in your place if you are not available or incapable of making important decisions for yourself. For example, a husband may grant his wife a special POA to sign for their new home at closing while he is out of town. Or a widow may appoint her adult son as her POA to make medical decisions for her if she loses the ability to make her own decisions.

 

It is a good idea to have a POA in place because a debilitating accident or illness could strike suddenly. Without a recent, valid, POA in place your loved ones will need to seek Court appointment to act in your place. Not only is this process far more expensive than a POA, but also your loved ones will be required to file annual reports with the Court. Thus, your business will not be as private as you might have liked and your loved ones will need to devote time and/or money to preparing and submitting these comprehensive reports. In addition, the person the Court appoints to act for you may not be the person you would have chosen for yourself.

 

As the old saying goes, an ounce of prevention is worth more than a pound of cure.

Can I write my own Will?

You can, but it is not recommended.

Colorado is one of a few states that recognize Wills written entirely in your own handwriting as valid.  The legalese term for a handwritten Will is a “holographic Will.”  There are several pitfalls to holographic Wills.  You cannot type out your wishes and then sign at the end.  The entire Will has to be handwritten.  If you move to another state that does not recognize holographic Wills then you no longer have a Will.  Even if you stay in Colorado, a holographic Will does nothing about property owned in another state that does not recognize holographic Wills.  For example, our neighbor to the south, New Mexico, does not recognize handwritten Wills as valid.  Many Colorado residents own mineral interests (such as oil and natural gas exploration) in New Mexico.  In that example, leaving behind only a holographic Will leaves behind a mess for your loved ones.

Nowadays there is also the option of writing your own Will using a software or online program.  People are drawn to this method because of the perception that it is inexpensive, fast, convenient and avoids actual communication with lawyers. 

But is it really cheaper to do your own Will on computer?  No.  A botched Will is far more expensive to try to correct than one drafted properly in the first place.  I personally have not seen any self-made Will that did not have some kind of issue that could or did become a problem down the road.  Also, some attorneys charge less than Legal Zoom (plus Legal Zoom and similar sites could be shut down at any moment for the unauthorized practice of law).  Even a high-end estate planning attorney may be worth it.  I am sure you have heard the phrase ‘you get what you pay for.’

Is a computer program really faster?  Not necessarily.  Seeing an attorney may be a faster process than purchasing a computer program and leaving it on the shelf at home for months or years on end collecting dust. 

Are do-it-yourself Wills more convenient?  Not always.  Many estate planning attorneys are available to meet you at your home or office in the evenings or on weekends or even over the phone.  Having an appointment with an attorney sets a ‘deadline’ to get you motivated and thinking about what you want in your Will along with someone to guide you through the process. 

Is avoiding an attorney the best way to go?  Some may think so.  However, computer programs may not analyze your situation and recommend the best type of Will or Trust for you.  Less common personal and state specific situations are generally not taken into account in a computer program.  Live, in-person expertise is the best way to ensure your needs are addressed.   Regardless of your personality type, there is an estate planning attorney out there who you can get along with well.  In the long-run, a botched do-it-yourself Will involves more time spent with lawyers to fix the problem(s) than a Will done right from the start.   

Yes, you can write your own Will.  But it is best to contact an attorney.

Can I Avoid the Hassle of Divorce By Living With My Sweetie?

Simply put, no.  If any children are born or adopted as a result of the relationship, a child support and custody (known as “Allocation of Parental Responsibilities” in Colorado) case will still be necessary.  If property issues are in dispute, not having been married actually makes the situation worse. 

The enforcement procedures of a divorce or legal separation to divide property fairly do not exist for those who live together without the benefit of marriage in the state of Colorado.  While the parties may be able to negotiate a contract to divide their property, this requires that the parties be able to reach a resolution.  If the parties are on opposite sides of the issue and unwilling to meet in the middle, forming a contract is impossible.  One or both parties could claim that they had a verbal contract or proceed under a constructive trust theory; however, these types of claims can be difficult to prove and are virtually certain to result in higher legal expenses than a divorce. 

On the other hand, because Colorado is one of the few states that recognize common law marriage as valid, couples who think they are merely living together may be in for the surprise that the state considers them married.  A number of factors are considered in determining whether a common law marriage exists.  Wearing wedding bands, having mutual children, the woman taking the man’s last name, telling others that they are married and, of course, cohabitating, may mean that a couple has entered into a common law marriage.  Currently, Colorado Courts place much emphasis on the filing of joint tax returns because they are signed under the penalty of perjury.  However, the judiciary could change direction at any time and merely appearing to the public as a married couple could be enough to form a common law marriage.  In addition, the added legal expense of first litigating whether a common law marriage exists and then either going through with a divorce or trying to settle property issues another way, makes dissolving a live-in relationship take longer and cost more than dissolving a ceremonial marriage.

Thus, paying $30.00 for a Colorado marriage license is well worth the time and expense.  Those who are opposed to entering into marriage can avoid the greater hassle of a potential common law marriage and the difficulties of dividing comingled property by having an attorney draft a cohabitation agreement.  A cohabitation agreement is similar to a pre-nup.  Like a pre-nup, it spells out the terms of how property is to be divided upon the break-up of the relationship.  Unlike a pre-nup, though, a cohabitation agreement specifically states that the parties are not married to each other and at no time intend to enter into a common law marriage.      

Why You Need a Pre-Nup Now

When two people fall in love, they feel like their love is special.  Like Romeo and Juliet except they’ll live happily ever after.  Nowadays people get married because, at the time, they are confident that they will stay together forever.  However, despite the best of intentions, marriage has about a 50% failure rate.  Colorado in particular has one of the highest divorce rates in the US.   

A pre-nuptial agreement sets forth the basic terms of the financial split in the event the marriage dissolves.  It can also contractually bind the parties to certain behaviors during the marriage.  A pre-nup reduces the costs in the event, which is quite likely, that the marriage does not work out to be a lifelong partnership.  Because these terms are decided upon in happier times, the necessary disclosures and negotiations go much faster and far smoother.  It leaves little, if anything, to fight over in a divorce.

A post-nuptial agreement does all the same things for couples who are already married.  Colorado recognizes such agreements made after the marriage as valid.  As you might expect, couples who execute a post-nup generally do so because they sense some trouble brewing on the horizon.  However, it does not mean that a divorce is inevitable.  For example, I did a post-nup years ago for a couple who are still married to this day.

It is also a good idea to think about what pre-nup terms you want and even the legal counsel you would choose before meeting the person of your dreams.  That way, your judgment is not skewed by your feelings.  Even if a potential marriage mate seems to be unlikely, keep in mind that falling in love can happen very fast and when you least expect it.

What’s the difference between a Will and a Living Will?

A Will refers to a Last Will and Testament.  It only goes into effect after one’s death.  It directs how one’s property is to be distributed, since, after all you can’t take it with you.  A Will can also set up Trusts that go into effect upon one’s death and even name guardians to care for one’s minor children.  Michael Jackson’s Will, for example, named guardians for his children.  In Colorado, if there is either real estate of any value or over $60,000.00 in personal property (i.e. cars, jewelry, furniture, clothing, etc.), a probate must be opened.  While the probate process in Colorado is not as onerous as in some other states, such as California, it can consume a considerable portion of the assets of the estate.  Probate can also be a public process.  In El Paso County, for example, the probate Court records are currently not available to the public.  However, this could change at any time.  A Trust set up during one’s lifetime can be used to avoid probate, reduce total costs and ensure the process is private.

 A Living Will is only in effect during one’s lifetime.  It lets one choose how long they want to be on life support, if they want tube feeding and even how they wish to be treated while on life support.  A Living Will only comes into play when a person enters a persistent vegetative state.  Consequently, not everyone will use their Living Will.  However, it is vital to have a Living Will just in case.  If Terri Schiavo had one, she would not have had to spend over 15 years on life support (unless she wanted to) while her family battled 14 Florida appeals and 5 Federal cases.       

Each individual has different needs when it comes to Wills, Trusts and Living Wills.  The best way to determine what fits your situation is to speak with an estate attorney.  Please do not hesitate to contact me to get started on your own estate plan.