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Tag Archives: colorado

Writing a Will in Colorado: The Basics

will imagesWhen people hear about wills or planning for a will it immediately brings them to the thought of death. No one wants to think about death or dying but not having a will can create difficulties for loved ones. A will permits a person to make decisions on how their estate will be managed after death. It allows the person to decide how their personal property and and other assets will be handled instead of the state managing their estate.

If a person dies without a will they are said to have died “intestate” and essentially the law will make decisions about dissemination of the deceased person’s estate and assets based on tenants of Colorado law. Many people find this prospect as scary as thinking about death itself.

In Colorado in order to make a will the person must be 18, be of sound mind, know their assets and immediate family members, and know who they want to give their assets to. A will may be handwritten or typed but must be signed by the maker and dated. A properly executed will should also be witnessed by two uninterested parties and, ideally, notarized. A person can also appoint someone else to sign a will on his/her behalf.  Colorado courts will generally accept a holographic (handwritten) or typed will but these wills are frequently found defective which may cause delay. People are normally surprised to hear that a will can be handwritten but there are many cases trial courts have heard that involved wills written on scraps of paper or napkins.  And some of those will have been held to be legally valid.

It is best to speak with an attorney when writing a will as writing a will does require special skills.  Most attorneys who handle wills will be able to write a will for you which will include all relevant language that will prevent unnecessary complications when it comes time to execute the will.  In most cases, it is good advice to avoid pre-printed will forms you could otherwise purchase from a big box office supply store.

A will can be updated or changed at any time provided the person is still mentally competent. Upon a divorce, Colorado law states once a divorce is final the ex-spouse no longer has a claim. Upon a marriage, the new spouse will be entitled to the same shares they would receive if there was no will set up. Colorado law also provides protection for children born after the will was executed as long as there were no provisions in the will to specifically exclude them. Worried about someone claiming your estate against your wishes? A clause can be added to the will to disinherit a person who contests the will but it will only be valid if the heir does not have a good faith reason to contest the will.

 

by Brittney Jones

Aurora Theater Massacre Jury Selection

dark knight risesJuly 20, 2012 just 18 minutes into the new movie “The Dark Knight Rises” gunfire was opened on the audience. The gunman was dressed in head-to-toe protective gear and many movie goers thought it was part of the movie until the gunman released two tear gas canisters up the aisles of the movie theater. After the canisters exploded, the gunman started firing at the audience. Police recovered an AR-15 rifle, a 12-gauge shotgun and two .40-caliber handguns. 12 people were killed and dozens more injured by the gunman who was taken into police custody minutes later known as James Holmes who was 24 years old at the time.

It is very rare to have a mass shooter in court as most either commit suicide or are killed by the police but James Holmes’s was taken into custody, charged and his trial has started. On January 20, 2015 jury selection began from 9,000 prospective jurors. It is the largest jury pool in U.S history. Of the prospective 9,000 jurors 1 of 50 registered voters in Arapahoe County had a chance of being selected. The prospective jurors will arrive in groups of 250 twice a day and will be asked to complete an 18 page questionnaire. Potential jurors will be called back for individual questioning which is a process that can take up to 4 months to complete. 100 potential jurors will be left after this process and will be questioned in a group session. The jury will consist of the final 12 jurors and 12 alternates which may not be complete until May or June with the trial lasting until October.

James Holmes has been charged with multiple counts of murder and attempted murder and has pleaded not guilty by reason of insanity. If found guilty, jurors will have to decide whether to recommend the death penalty. If found not guilty Holmes would be committed to a mental hospital indefinitely. The case has gone on for so long as the prosecution and the defense are trying to determine if Holmes was insane at the time of the shooting as defined under the Colorado law. Insanity as defined by Colorado law (C.R.S. § 16.8.-101.5) is The person must be “diseased or defective in mind.” This is typically translated as having a mental illness (almost always a psychotic thought disorder like Schizophrenia or Schizoaffective Disorder). To be considered mentally diseased or defective, a condition must “grossly and demonstrably impair a person’s perception or understanding of reality.”

Check back for updates as the trial gets underway. Jury selection is expected to take several months.

by Brittney Jones, Paralegal

When Can I Drive Again? Persistent Drunk Driving and Interlock

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The most important detail to know about any DUI or DWAI charge is that we are talking about two different paths: the criminal case prosecuted by the district attorney and the administrative case reviewed by the Colorado Department of Revenue. Both sides have the ability to revoke or suspend your driving privilege in different ways. A case dismissal on the part of the district attorney does not mean a dismissal by an administrative law judge, and vice versa. Don’t even bother bringing up what happened at your Department of Revenue DMV hearing to the district attorney when you’re in plea negotiations. Each agency does what they want with your case.

Are you a Persistent Drunk Driver (PDD)? This is a label the Department of Revenue will give you if you picked up a DUI charged after January 1, 2014 and your blood alcohol level was a .15 or higher. If you picked up a DUI charge after 1/1/2014 and you refused to take a chemical test (blood test or Intoxilyzer breath test), you will also be slapped with a PDD label. If you are designated a Persistent Drunk Driver after 1/1/2014, you will be required to have an interlock device installed on your car for a minimum of two years if you want to drive at all. This is after you’ve served the period of suspension which is typically 30-60 days and you have purchased SR-22 insurance. The interlock device (aka “blow and go”) attaches to your car’s ignition and requires you to blow into a tube for several seconds to test your breath for alcohol. Once the device determines you are clear to drive it will beep at you and you’re free to start driving. Every 10-15 minutes of driving the device will beep for a follow up test. You can blow into the device while driving, but use caution because it can be a distraction. If you fail the test or it results in error from incorrectly blowing or not using enough breath, your call will stop running.

The interlock device requires regular calibration at a designated service center every 30 to 60 days which costs between $70 and $90. A printout is mailed to the Department of Revenue indicating all testing results. You can usually remove the device after the 2 year period with clean driving and no positive test results. You’ll get notification from the Department of Revenue saying you’re free to drive normally again. If the device detects alcohol on the driver in three of any twelve consecutive months, the interlock restricted driver must keep the interlock device and be under the interlock restriction for an additional year.

6 Reasons Why You Should NOT Go to Court Alone

judge cartoon There are hundreds of websites written for people who want to represent themselves. Everyone in the United States has access to Google and Bing. Most people with at least some computer savvy can locate major case decisions for DUIs, divorce and criminal offenses with a few swipes on their smartphones. Here’s the cold fact: while you may effectively represent yourself in some limited cases, if you have been charged with anything other than a petty offense or traffic ticket, or if you’re embarking on a divorce or family law case and don’t want to give everything away to the opposing side, you should strongly consider speaking to an attorney first. And after speaking to that attorney (and maybe a few others), you should probably hire one of them. Here are 6 reasons why you should not (I repeat: NO NO NO) represent yourself in court, regardless of everything else you may have read online.

1. So you want to go pro se, but you don’t know what the words “pro se” mean?

I can’t count how many times I’ve heard lousy attorneys or unrepresented defendants tell the court they’d like to “squash” a warrant. Do you know the right word to use in that last sentence? It’s “quash” and if you didn’t know this, you probably should not be representing yourself in court. Courtrooms have a certain vocab, a Latin-heavy lingo, that you may not be used to hearing in everyday life. Every document served in court has its own legal title: petition, citation, motion, answer, response. Every hearing has a different name: first appearance, arraignment, setting, pretrial conference, disposition etc. Stop your head from spinning on all of the legal jargon and hire an attorney so you don’t have to think so hard. P.S. Pro se translates to “for oneself,” as in going to court for yourself. Remember this.

2. The judge will not like you if you represent yourself.

Yes, you have the right to represent yourself in court. However, nobody likes it. Should you decide to represent yourself, it’s likely you’ll hear the judge advise you once or more about that decision. Sometimes judges will even slickly try to talk you out of going pro se (I know you now know what pro se means). Representing yourself means the clerks and judges will have to take more time to explain things to you. This will effect court efficiency and most judges love efficiency. Also, some defendants/respondents/petitioners come as cocky or arrogant as they huff and puff and address the Court. Have you heard Judge Judy react to arrogant people on her show? I’ve seen judges come down similarly on parties. I’ve heard a judge actually tell the parties, “This is not Judge Judy!” when courtroom decorum wasn’t followed.

3. You’ll get out of court faster.

In most jurisdictions, attorneys are heard before everyone else. That means if you have an attorney, he or she can jump up and have your case called toward the beginning of the docket. That means you get to skip being bored and restless listening to all of the other cases drone on before the judge gets to your name, Zachary Zagat, printed last on her alphabetically listed docket. 4. Every courthouse and courtroom is different. You can’t research that online. I’ve practiced in Colorado for almost a decade now and I’ve appeared in eight different counties/jurisdictions so far. Every jurisdiction runs a little differently from the next. While a pro se or sovereign focused website will give you a general overview of what you might expect of the court process, that website might not be specific to your jurisdiction and I’m certain there will be no details about how the courtroom operates in your assigned division in your particular jurisdiction. I suppose you could sit in on dockets for hours beforehand and get a feel for your judge–and I’ve seen pro se defendants do that sort of thing–but who has that kind of time? You’re better off spending that time shopping around for an attorney who you feel is on your side and competent to take your case. And speaking of online research, printing out Wikipedia pages and webmd.com articles to present to the Court at a hearing will have little to no impact on the outcome of your case. There’s this big book of things called The Rules of Evidence, which dictates what kind of evidence gets action in a case. You’ll be held to a standard pretty close to a regular attorney and that means you’ll have to play by the same Rules.

5. An experienced attorney knows the court’s quirks and preferences.

Remember the classic comedy, My Cousin Vinny? Vinny may have (spoiler alert) won the trial, but he sure looked ridiculous along the way. And he was an actual law school graduate. I suggest you find an attorney who has experience practicing in the courthouse where your case is scheduled. When I say “practicing,” I mean standing in front of the bar in the courtroom on a regular basis, reciting his bar registration number from memory for the record without hesitation, and addressing the judge from the lectern. A cousin of a friend of a friend who does real estate law probably won’t be of help to you on your felony burglary case that’s postured for a jury trial, even if his retainer is bargain basement. Why not choose the attorney who can name a couple of the judges in the courthouse and knows that, for instance, Judge Matthews is a woman?

6. Have you met Miranda?

Don’t trust what you see on TV. I’ve had dozens of potential clients tell me that their cases should be thrown out since the police officer never read them their rights. Because, they say, on Law & Order, or CSI or Brooklyn 99, the cops always read the Miranda rights, right? Not so fast; there is no automatic rule saying a cop has to read you anything upon first contact. You’re really only supposed to get those famous Miranda advisements read to you if you’re facing custodial interrogation, a term which can be complicated and is outside the scope of this blog post. And even if you happen to be in a situation of custodial interrogation and you weren’t read your Miranda rights, it doesn’t necessarily mean that the entire case gets tossed. There are nuances that need to be considered. If you’re going to remember anything about Miranda upon reading this post, remember the second of the rights: You have the right to an attorney. If you can’t afford an attorney, one may be appointed for you. Take advantage of this right and don’t go it alone on your legal matter.

Coping with Your Divorce

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In marriages we all have our ups downs, and sadly sometimes those downs can’t be fixed. Divorce is very possible especially when younger people get married quickly. Sometimes divorces are mutual, sometimes they are one sided. Either way there are a lot of emotional decisions that need to be made and considered when filing for divorce. There are many ways to cope with these hard decisions and the overall fact that your marriage is over. For example, give yourself permission to cry, this is a hard enough time without you having to hide your feelings. Secondly, remind yourself why you’re getting divorced, your exes worst qualities will give you the confidence boost to keep moving forward with the divorce process.

After the divorce is over you need to realize you will have different feelings about what just happened. For some they feel very happy that the divorce is over and they can move on with their lives. For others, they feel very sad and in denial that a piece of their lives is gone forever. Just remember to give yourself time to grieve. Divorce is a big hard decision and it will feel strange for a while. Don’t punish yourself either, you deserve to be happy again and when the time is right for you it will happen.

Some ways to cope with the after divorce feeling are to find a new hobby, something you’ve never done with your ex. Go on vacation or just start exploring new areas of where you live, give yourself new memories. For the days that you just want to stay in bed, curl up with a good book or a sappy movie, it’s ok to cry! Just keep reminding yourself that you made this decision for a reason and in time you’ll feel better and ready to move on completely.

By Daron Allen, Paralegal

I'm the Grandparent -- Don't I have Rights to my Grandchild?

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Fact:  In the United States, grandparents do not automatically enjoy legal rights to visit their grandchildren or gain custody of their grandchildren.

This is an interesting fact given that a 2011 study found that grandparents were the primary caregivers for 3 million of the children in the county and a second study determined that 1 out of every 10 U.S. children lives in an extended household that included one or more grandparents.  Certainly grandparents play an important role in a child’s upbringing, but what if a parent just does not want grandparent input or does not want the child to have a relationship with his/her grandparent at all?

Each state has its own laws in place regarding the extent to which a grandparent may petition a court for visitation with a grandchild.  Some states are very lenient while others barely allow grandparent any standing to bring the issue before a court of law.  Colorado is middle-of-the-road on the issue of grandparent rights to visitation and child custody.  In Colorado, section 19-1-117 of the Children’s Code in Colorado Revised Statutes covers grandparent visitation and it does not provide a particularly broad remedy to grandparents.  The crux of the Colorado Children’s Code is that a court shall determine whether its ruling or decision would be in the “best interest” of the child.  This is the standard by which most courts across the country decide. In deciding the “best interest” of a child, a court will consider the totality of the evidence and circumstances surrounding the grandparents’ request.

Prior to a grandparent even considering a motion to the court for visitation in Colorado, there must be an already existing or open legal action in process.  From there, there are legally three situations in which a grandparent may raise the issue of visitation of a grandchild with a court:

  1. Child custody has been granted to someone other than the child’s parents (not including adoptions);
  2. The parents’ marriage was annulled or the parents are otherwise divorced or legally separated; and,
  3. The child’s parent (the grandparent’s child) is deceased.

With respect to grandparent rights to custody or “parental rights” of a grandchild, courts in Colorado are somewhat more limiting.  The controlling source of law is the Uniform Dissolution of Marriage Act (UMDA), particularly section 14-10-123.  Grandparents may petition a court for parental rights if the grandchild is not under the physical care of his/her own parent or where the grandchild has been under the physical care of a grandparent for six months or more.  If a grandchild was under a grandparent’s physical care for six months and that arrangement terminated, a grandparent may file for parental rights so long as the petition is filed within six months of the termination.  In most cases, the proper motion to file is called a Motion for Allocation of Parental Responsibilities.

From a practical standpoint, in many cases courts tend to rule in favor of grandparent visitation, particularly in cases where the child’s parents are fairly young and dependent financially or emotionally on their own parents (the grandparents).  Courts appear to see a benefit in a child being cared for both at a nuclear level and via extended family, and this makes logical sense.  Because the laws surrounding grandparent rights are not exactly black and white in Colorado courts, any grandparent may benefit by speaking to a local attorney who can help clarify the issues and determine a strategy in those cases where a grandparent’s situation may fit the statutory parameters for grandparent visitation and custody.

What Happens to an Engagement Ring in a Divorce?

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Upsetting all Las Vegas odds, Kim Kardashian eventually gave back the 20+ carat stunner engagement ring Kris Humphries gave her before their 72 days of wedded bliss.  Perhaps your ring isn’t as ostentatious.  Still, it may possess some serious emotional and financial value.  So what happens to an engagement ring in a divorce or dissolution action?

The Colorado courts’ consensus is that an engagement rings is a “conditional gift,” or gift given by one person to another person in contemplation of marriage.  Once the marriage actually happens, the condition is met and the ring becomes the receiver’s separate property.  If the parties end up divorcing, then legally the receiver gets to keep the ring.

If the receiver terminates the engagement before marriage, then the condition of the gift has not be met, and the ring is to be returned.  In Colorado generally, fault does not come into play.  It does not matter if one person or both caused the marriage not to take place; the law says the ring gets returned to the giver.

However, there are cases in Colorado where courts have considered the issue of fault to the extent that a man had given a woman an engagement ring but it was found that the man had been abusing the woman and that was the reason the marriage was called off and the engagement ended.  In those cases, courts have determined that the woman can keep the engagement ring.

Every case is different.  There may be other instances of fault which a court may consider, or your case might be more concrete.  Consider consulting an attorney to discuss your specific situation.

 

 

— Marika Frady, Esq. is an attorney handling Divorce, Family Law, DUI and Bankruptcy cases in greater El Paso County, Colorado including Colorado Springs, Fountain, and Manitou Springs, as well as Teller, Pueblo and Douglas Counties.  Connect with her on Google Plus today!