Colorado Divorce and Custody Law for Therapists Everything you need to know to support your client through the Colorado

1. Colorado Divorce and Custody Law for TherapistsEverything you need to know to support your client through the Colorado divorce process © Matthews & Matthews PC

2. Our Presenters • Leslie Matthews BSN, JD: • Managing Partner of Matthews & Matthews PC, a Denver based Family Law Practice; Attorney since 1986. SICU nursing early 1980’s, • Kenneth A. Matthews JD: • Senior Litigation Partner of Matthews & Matthews PC. Practicing Attorney since 1979. © Matthews & Matthews PC

3. Divorce • Your Client tells you they are thinking about getting a Divorce and you wonder… • What legal and financial issues will they have to address? • What will the process be like for them? • Is he/she prepared emotionally and financially for this? • What will they need to do before they file for divorce to protect themselves? • What other support systems are available to support them through the process? © Matthews & Matthews PC

4. Agenda • What are the key legal issues for your client ? • Step by Step Divorce Process • Before your client files for divorce: • Planning • First Steps • The Therapist/Client Privilege in Colorado Custody and Abuse cases © Matthews & Matthews PC

5. Key Issues in a Colorado Divorce • Understanding Divorce in Colorado: • No-fault Divorce State • Exception: Financial wrongdoing • Exception: Safety issues related to child custody • Legal Separation vs. Divorce • Assets/Debts and child issues the same • Remarriage not possible for 6 months • After 6 months either party can petition court for dissolution. • Role of the Family Courts • Judge as fact finder: pros and cons • Variations from County to County © Matthews & Matthews PC

6. Key Issues in a Colorado Divorce • Asset and Property Division • Standard of Law: Equitable Division vs. Equal Division • Separate Property vs. Marital Property • Property obtained prior to marriage • Increase in value • Inheritance or gift at any time • Increase in value • Property obtained during marriage • Accounts in one person’s name • Gifts between spouses • Personal property • Maintenance (Alimony) • What your client can expect from the Colorado Courts © Matthews & Matthews PC

7. Key Issues in a Colorado Divorce • Spousal Maintenance /Support (also known as alimony) (Reasonable needs test) • Discrepancies in Income • Length of marriage • Standard of living during the marriage • Income potential, need for education or training • Separate property • Allocation of marital property/ child support • Age and physical condition • Ability of the party providing maintenance to meet needs • Consultants can be hired to show long term predictions on income and how to equalize • Advocacy is important and the Court has much discretion “a maintenance order entered at permanent orders shall be in such amounts and for such periods of time that the court deems just” CRS 14-10-114 © Matthews & Matthews PC

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10. Key Issues in a Colorado Divorce • Child Support and Custody • Colorado Child Support Guidelines (formula) • Equally responsible to support • Each Parents Income • Number of overnights with each parent • Based on financial disclosures • Exception: special circumstances, high income © Matthews & Matthews PC

11. Key Issues in a Colorado Divorce • Allocation of Parental Responsibilities (Custody) • Court Standard: “Best interests of the Child” • Parenting Time • Even if both parents are “fit” can be unequal • Primary Residential Parent: Permanency, Stability and a bond with both parents • Preference of the Child (won’t have them appear in court, CFI) • Decision Making • Usually shared if both parents “fit” and able to make decisions together • Schools, Religion, Medical/ Psychological Treatment • Advocacy plays a big role in building case for what is in the best interests of the child or children. • Large role of the Court in fact finding • CFI: Child and Family Investigator - Influence on Court • Therapist Privilege © Matthews & Matthews PC

12. Typical Maladaptive Behavior Patterns • Avoidance Pattern: I don’t want to look at this • Fear Based • Don’t process what they read if they read it at all • Difficulty focusing on what needs to be done • Want the attorney to do it all for them • Don’t want to face the issues and decisions • Just want this to be over with. • Compliance Problems • Dominate and Control Patterns: The automatic no and getting lost in the details • Anger and Fear Based • Get caught up in controlling small details • Often can’t see the forest through the trees • Anger colors their ability to make smart choices and decisions • Need to be re-focused often. Anger gets on everyone involved. • Increase attorney fees with reworking documents and negotiations

13. Typical Maladaptive Behavior Patterns • Despair Pattern: I just want to give up and make this end • Sadness based • Loose site of their true priorities. Feel like they “Don’t care anymore” • Can’t see anything positive in the future. • Willingness to agree to things to end the case that they might deeply regret later • Unwilling to take a stand for what they know is best. • Feel powerless to change the other parties actions. • Emotional Overwhelm and Confusion: I just can’t do this • Fear and Sadness Based • Lots of confusion, focus on self and feelings • Cries often during meetings. Needs a lot of attorney time to get past emotion. • Changes their mind many times. Problematic for legal case. • Need to be re-focused often • Tends to focus on issues that cannot be handled through the legal system 13

14. Typical Maladaptive Behavior Patterns • Guilt or Shame Pattern: Just give her what ever she wants • Sadness based, self punishment • Usually involves some betrayal including extramarital affairs or hiding the fact that they are gay or lesbian. • Willing to give up on issues that they will regret later • Unwilling to take a stand for what they know is best. • Come around if case lasts long enough. • Co-dependent and Enabling Pattern: Can’t stand up • Can’t take it any more. Want out of the relationship. Feel trapped. • But they don’t want to upset the other party. • They still keep their caretaker role throughout the legal proceedings. • They don’t make decisions that take care of their own needs. • They get blindsided during the process. Surprised when the other party takes action against their interests. • They change their mind a lot. They drop the case and re-open. 14 14

15. Issues not addressed by the Legal Process or; why most clients need a Therapist • From our perspective: Most clients need to build skill sets in how to: • Separate from their own anger and emotional reactions and make decisions during the divorce that are in the long term best interests of the children and the family as a whole. • Take care of the emotional well being of the children during the divorce process • Build a strong co-parenting relationship post divorce • Build a post divorce family that works • Develop a process to resolve your differences following the divorce © Matthews & Matthews PC

16. The Colorado Divorce Process • How long does it take? • At least 90 days from date of service of process or waiver of process • Typical Divorce timeframe • Court Policy: One year at the outset • Emotional Stress in the Divorce Process. • A given • Emotional “Hot Spots” and need for clear thinking The Process • Step One:Filing a Petition for Dissolution and Service • Service of Process starts the clock • Timing: usually a few days • HOT SPOT #1: Unexpected reaction from the spouse • Preparation before filing is Key (discussed later) © Matthews & Matthews PC

17. The Colorado Divorce Process • Step Two: Emergency Motions (when needed) • Temporary and Permanent Protection Orders (may be step one) • Emergency Motions: • Location of children • Financial Crisis • Issues with Court Schedules and Staffing • Timing: As soon as possible after Petition Filed • HOT SPOT # 2: Emergency Motions tend to be highly emotional and the people involved are in great need of support. • Step Three: Gathering Documents from both sides • Timing: About 40 days • Issue: Many clients find this process very difficult. We often see a need for support here. Procrastination plays a big role. • Our experience with a finance and budget coach/ Team approach © Matthews & Matthews PC

18. The Colorado Divorce Process • Step Four:The Initial Status Conference • First time both parties appear in court • Timing: Around 40 days following service on opposing party • Courts opportunity to check in • Usually little action taken • Can get Emergency Orders done if not already accomplished • Child and Family Investigator • Step Five: Temporary Orders • Evidentiary Hearing for Temp.Child Support, Temp Maint., use of marital property, payment of bills and temporary parenting time and decision making. • Timing: as soon as possible after Initial Status Conference (what works for the Court: one to two months typically) • Need Financial Documents from both sides to be available • HOT SPOT #3: If your client does not get what is expected, can cause an immediate affect on lifestyle. Also sets context for final determination. It is a contested hearing, can cause hard feelings. © Matthews & Matthews PC

19. The Colorado Divorce Process • Step Six: Negotiation, Mediation and Status Conferences • Mediation is required by some jurisdictions, recommended in others. • HOT SPOT #4: If the mediation goes well it can resolve the case. If it goes badly it can increase the contention between the parties. • It is very important to prep your client emotionally for the mediation process so that they can make decisions from a big picture perspective. Clients need to look at it like it is a business transaction. What fights are worth fighting and what are not. • Timing: Depends on the complexity of the case and the level of contention between the parties. • HOT SPOT #5: Child and Family Investigator Report (guidelines) • How to prepare your client to work with the CFI • Supplemental • If the parties reach a stalemate and are unable to resolve their issues, the case will be set for a Permanent Orders Hearing. © Matthews & Matthews PC

20. The Colorado Divorce Process • Step Seven: Permanent Orders • A Permanent Orders Hearing is a trial. • Timing: no sooner than 90 days from date of service of process of Petition for Dissolution. • HOT SPOT #6: For obvious reasons. Going to Court is extremely stressful. • If the parties reach an agreement on all issues, they may be able to file an Affidavit for Entry of Decree without Appearance of Parties and avoid having to go to Court. • If there are children and both parties are not represented by Counsel they must appear before the Judge to have the court accept their agreements. • Best and Worst Case Scenarios © Matthews & Matthews PC

21. The Colorado Divorce Process • Step Eight: Post Decree Matters • Contempt Hearings when the Ex-Spouse does not obey the Court Orders • Splitting of Retirement Accounts: Usually longer than expected • HOT SPOT #7: A client that thinks the process is complete can have a strong emotional reaction when they have to go back to Court again just to enforce the Courts decision. This also increases the cost of the case • Modification of Maintenance, child support, parenting time, decision making or relocation © Matthews & Matthews PC

22. The Colorado Divorce Process • How to get the information you need to support your Client • Asking for key dates from your Client • Case Management Orders: • Provides some of the Key Dates • Different depending on the jurisdiction (County) • Usually received about two weeks following filing of the Petition for Dissolution • The Team Approach to Divorce • Attorney/Client privilege and Therapist/Client privilege • A careful team approach © Matthews & Matthews PC

23. Before filing for Divorce • First and Foremost: You will work with the client to assure that this is what they really want to do. • It is important that the client understand about the divorce process and what to expect. • The Client must locate and make sure they have access to their Key Financial Documents: (make copies as necessary) • Tax Returns • Credit Card Statements • All Debt Information • All Investment Account information • All Bank Account Information • All Real Estate Ownership Documents © Matthews & Matthews PC

24. Financial Planning Before filing for Divorce • Financial Planning your client needs to do before Divorce: • Gather all of important financial documents and determine what their assets and liabilities (debt) are worth, jointly and individually. • Create a budget for their current expenses • Obtain a copy of their credit report and credit score • Accelerate major expenditures such as needed repairs on their home or car so this can be done with marital assets. • Look at how they will increase their earning power if necessary and determine cost and time of additional professional training. • About your Client’s Home: • Do they know the value of their home. (appraisal or RE agent) • Do they know how much equity they currently have in your home? • Is their marital home titled in their name? Does it matter? • If they had to, could they support keeping this home on their own after a divorce? (Contact Mortgage Professional and/or Financial Coach) © Matthews & Matthews PC

25. Planning for a Successful Divorce Process • Collaborative Divorce pros and cons • Interview and Select a team of professionals • Attorney • Accounting/ Budgeting • Investment • Consider a team approach and if the professionals can work together well. • Take their time in choosing their team. Get lots of advice up front before they file for divorce. © Matthews & Matthews PC

26. Just before your Client Files for Divorce • First steps when you are ready to Divorce: • Open a separate checking and savings account • Obtain a separate credit card • Review monthly bank and financial statements and make copies for your attorney • Change the signature authority on joint bank and investment accounts so that both signatures are needed for withdrawals. • Close joint credit card accounts and notify credit card companies in writing that you will not be responsible for any future debts on a particular card. (you will continue to be responsible for past balances) © Matthews & Matthews PC

27. Therapist/Client Privilege in Colorado What is the Therapist/Client Privilege? • Under CRS section 13-90-107, a therapist cannot be examined as to the following: • Communications made by the client • The therapist’s advise to the client • Knowledge gained during the course of therapy • Without the client’s consent • This includes the discovery of all records and notes relating to therapy Who does the privilege belong to? • The privilege belongs to the client only. • The client can waive the privilege the therapist cannot. Can the privilege be overcome? • Yes under two circumstances. • Abrogation: “To repeal or abolish something formally and publicly” (Statute) • By waiver of the client: Either express or implied © Matthews & Matthews PC

28. Therapist/Client Privilege in Colorado Child Abuse and Neglect Cases • Abrogation of the privilege in Abuse/Neglect cases • CRS section 19-3-304 requires licensed marriage and family therapists who have: • Reasonable cause to know or suspect child abuse or neglect or • Observed the child being subjected to circumstances or conditions which would reasonably result in abuse or neglect • To immediately make a report to the county department or local law enforcement agency. • Even if you learned this information in a therapy session? Even if your client is the perpetrator? • YES • You are permitted to testify and release your records as to any sessions that formed the basis of your report. CRS 10-3-311 * • You are required to supplement your report if information “materially at variance with their report” arises. (Dill v. People,1996) © Matthews & Matthews PC

29. Therapist/Client Privilege in Colorado Child Abuse and Neglect Cases • Waiver of the privilege in Abuse/Neglect cases • There is a waiver of the privilege if the client “Testifies to the substance of the treatment” It is not sufficient to testify to the kind of treatment. The comments must go to the substance of the treatment sessions or the advise given. (People v. Sisneros, Colo. 2002, where therapist was not the reporter) Child Custody Cases • Abrogation in Child Custody Cases • CRS 14-10-127 allows a child and family evaluator to “ consult with and obtain information from medical, mental health, educational, or other expert persons who have served the child in the past without obtaining the consent of the parent…but the child’s consent must be obtained if the child has reached the age of fifteen years unless the court finds the child lacks mental capacity to consent” • You have to speak and release records to the CFI regarding the child’s therapy without consent unless the child is over 15 years of age. • There is no specific language to this effect regarding parent’s therapists. There is no specific abrogation of the parent’s therapist privilege. © Matthews & Matthews PC

30. Therapist/Client Privilege in Colorado Child Custody Cases • Abrogation in Child Custody Cases • Practical Reality: Chief Justice Directive to CFI’s (not statute) states “ The parties shall sign any releases necessary to allow the CFI to properly conduct his/her investigation and the CFI may request the Court to issue any other necessary order for release of information.” • What CFI’s tell parents in custody cases • 14-10-127 also states “Any party to the proceeding may call the evaluator and any person with whom the evaluator has consulted for cross examination. • If the privilege had been abrogated, the Chief Justice Directive would not have to state that parties shall sign an express waiver/release. • Waiver in Child Custody Cases • The Supreme Court of Colorado has not addressed this issue, but many other states have. • In some states the Supreme Court has held that by bringing a custody action, you have implied that you have waived your therapist privilege. • Alabama, Alaska, Louisiana, Michigan,Texas. • In States that believe in implied waiver, some have statutes that specifically state: “There is no therapist/client privilege in a child custody matter in which the mental state of a party (parent) is clearly an issue” © Matthews & Matthews PC

31. Therapist/Client Privilege in Colorado Child Custody Cases • Waiver in Child Custody Cases • Indiana goes the farthest by holding that the privilege is automatically waived, even if mental health is not an issue in the case. (Owen v. Owen, Ind. 1990) • In other states the Supreme Court has ruled that for Public Policy reasons the Therapist/Client privilege is maintained in child custody cases. (least intrusive means test) • Privilege Maintained: Florida, Missouri, Maryland, Hawaii, California, Connecticut. (Chilling effect on ability of parents to get therapy when needed) • Middle Ground: Massachusetts, New York, New Jersey • Hospitalization Exception: Wisconsin, Kansas, Nebraska • How will Colorado Rule? • Public Policy in Criminal and Personal Injury has been addressed • Narrow Construction of Statutes • No implied waiver unless mental health is brought into issue by the party themselves. • How will they weigh best interests of the child vs. chilling effect on parents ability to get counseling? © Matthews & Matthews PC