About the Guide The Colorado Divorce & Family Law Guide was created by Carl O. Graham, a Colorado Springs, CO divorce lawyer, and principal of Black & Graham, LLC, a family and criminal law firm. Carl runs the family law side of the firm, and focuses exclusively on Colorado divorce, military divorce issues, child support law, grandparent rights & visitation, common law marriage, child custody, legal separation law, annulment, alimony law, etc. Visit our web site to learn more about our Colorado Springs law firm:
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Court Cannot Control Where Parent Lives in Initial Parenting Determination.
In Spahmer v. Gullette, decided on June 6, 2005, the Colorado Supreme Court ruled that a Colorado divorce court cannot decide where a parent lives, but rather, must accept the location where each parent chooses to live, and decide appropriate parenting arrangements based upon those locations.
This case concerned an initial determination of parental rights, rather than a post-decree situation where a parent sought to remove the child from Colorado. The trial court ordered the Mother to live in close proximity to the Father, so he could share parenting time. The Supreme Court overruled that, deciding that in an initial determination of parenting, since one of the factors was the proximity of the parties to one-another, the Court could consider that factor when creating a parenting plan, but not control the proximity of the parties.
Cannot Presume Best to Remain with Both Parents in Removal Cases.
In Marriage of Ciesluk, decided on June 6, 2005, the Colorado Supreme Court overruled a Court of Appeals decision which forbade a mother from removing the child from Colorado on the grounds that the removal would not "enhance" the child's life. The Court of Appeals found that it was in the child's best interests for the parents to remain in close proximity, and denied the removal request on the grounds that it necessarily would have reduced the parenting time of the parent who remained in Colorado.
The Supreme Court ruled that no presumptions apply in removal cases - that means that each parent has the burden of establishing that their proposed course of action would be in the child's best interests. Colorado divorce courts cannot start off by presuming that the child would be better off relocating with the majority parent, or better off remaining in close proximity to both parents.
Social Security Benefits Not Divisible.
In Marriage of Morehouse, decided on February 24, 2005, the Colorado Court of Appeals ruled that Social Security benefits are not marital property which can be divided. The divorce court had put a value on the husband's right to receive social security, and awarded the wife extra marital property to compensate her for the value of the husband's anticipated social security benefits.
The Court of Appeals observed that 42 U.S. Code §407(a) prohibited the assignment or transfer in any manner of the right to receive social security benefits. Thought the trial court did not explicitly assign to the wife the right to receive social security benefits, the court found that awarding a spouse the exact present value constituted an improper offset of the social security benefits, which was tantamount to dividing the social security itself.
The Court did not prohibit Colorado divorce courts from considering the right to receive social security benefits entirely. On the contrary, the potential that one spouse may have a financially secure retirement is a "relevant economic circumstance" a trial court may consider when trying to fashion an equitable division of property, similar to a spouse receiving an inheritance or having a greater earning capacity. This means that while a dollar-for-dollar offset is impermissible, Social Security benefits are not entirely invisible to a divorce court.
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