Legal Quick Tips!

Many people assume that judges in divorce simply divide all property and debt equally between the parties.  Although that happens sometimes, Colorado law does not require such a result.  The law actually requires courts to follow a multi-step process in awarding property to divorcing spouses.  The Court must first have a clear understanding of all property owned by the spouses together and as individuals.  The court must then classify each item of property as separate (belonging to only one spouse) or as marital (belonging to both spouses).  The court then awards each item of  separate property to the appropriate spouse, husband or wife.  Finally, the court must divide the marital property not equally, but  fairly between the spouses.

Classification of property as marital or separate can have a profound impact on the over-all division of property, because neither spouse has any rights to the separate property of the other.  In classifying property as marital or separate, the court must follow rules created by the State Legislature.  As a general rule, property acquired by either spouse before the date of the marriage is separate, and property acquired after the marriage is marital.  However, the statute creates numerous exceptions to these general rules.

Many variable factors can influence a court to divide the marital property in some proportion other than 50-50.  Such factors include, for example,  age, health, earning ability of each spouse and the value of separate property awarded to each individual spouse. In some unusual cases, the court may award a large majority of the marital property to one or the other spouse.   In other cases, it may divide the property very nearly equally.

For a better understanding of property division and all other issues arising in divorce, contact Weaver & Fitzhugh, P.C. today.  Our lawyers and staff have over fifty years’ combined experience in handling all aspects of divorce. We can assist in finding creative solutions to avoid costly litigation and will do so whenever possible.  However, if necessary, we will provide expert, effective assistance in litigating the most difficult disputes.

Do you plan to start a small business?  Do you already own one as a sole proprietor or in partnership with others?  In either case,  you may benefit from organizing your business as a corporation, limited liability company or other business entity.

Among other advantages, a business entity can help insure that legal liabilities and other potentially adverse consequences resulting from business activities – accidents and business disputes, for example –  fall not on the individual business owner and her personal assets, but only on the business entity and its assets.  However, failure to choose the appropriate business form – or failure to properly manage and administer it – can have negative consequences for the individual owner.

For answers to your questions about small business entities and assistance in forming one, please visit our office or call for an appointment today.

A couple of years ago, in response to a notorious Boulder County Court battle between two neighbors, the Colorado Legislature enacted statutory changes to the Common Law rules of Adverse Possession. In essence, the legislature enacted provisions making it more difficult for anyone to acquire title to the real estate of another person through adverse possession.   However, contrary to rumor and conventional wisdom, the doctrine of adverse possession remains a very important part of Colorado Real Estate Law.  In Colorado, under certain circumstances a so-called “squatter” may still acquire rights in real estate and sometimes even outright title.  It therefore remains important for Colorado real property owners to act diligently and within legal limits if  some third party is now (or has in the past) occupied or trespassed upon their real estate for any substantial period of time.  Despite recent legislative changes, failure to act diligently in such situations could ultimately result in loss of real property rights.

Weaver & Fitzhugh, PC prosecutes and defends adverse possession cases throughout the Seventh Judicial District, including Montrose, Delta, Ouray and San Miguel (Telluride/Norwood) Counties.  For more information about adverse possession and other real property issues, please call or visit our offices today.

If you have done work or supplied materials contributing to any improvement to real property within the State of Colorado – with or without a contract – and have not received payment, you may have the right to collect payment for your materials or work by recording and foreclosing a mechanic’s lien.  Perfection and enforcement of a Mechanic’s Lien requires very strict adherence to the requirements of Colorado’s Mechanic’s Lien Statute.  Failure to meet deadlines and adhere to technical legal requirements can  invalidate a mechanic’s lien.

Homeowners who have paid the full contract price for construction of their home may in some circumstances defeat a mechanic’s lien and, sometimes, recover attorney fees for the costs of defending against a mechanic’s lien foreclosure.

For more information about creation, perfection and enforcement of Mechanic’s Liens, please call or visit us today.

If arrested for D.U.I., D.U.I.D (drugs) or D.W.A.I in Colorado, you should contact a lawyer immediately.  People arrested in Colorado for any of these charges often must defend two entirely separate legal proceedings: one through the court system and one through the Department of Revenue, Division of Motor Vehicles (D.M.V.).  Because the D.M.V. proceeding requires the driver to take the initiative by requesting a hearing with the D.M.V. within seven days of arrest, many drivers wind up losing their driver’s licenses at the D.M.V. long before they ever have their “day in court.”

Colorado’s Express Consent law obligates a driver to submit to drug and/or alcohol testing following a valid arrest for any of these charges.   Failure to cooperate in the testing or test results showing a BAC beyond the legal limit can lead to license revocation before the driver even has his “day in court.”  However, before the arresting officer has a legal right to request a alcohol or drug test, he must have probable cause to arrest the driver and he must follow the other procedures specified by law.  If the arresting officer fails to follow the legal protocol, the driver may have valid defenses to both criminal conviction and to driver’s license revocation.

Following initial license revocation upon arrest, the driver has a right to a hearing in the DMV to determine the validity of  the revocation.  Unless the driver takes the initiate to request that hearing, he loses the right.  Failure to seek effective legal counsel may also jeopardize the driver’s chances of prevailing at the hearing.

D.U.I.D. charges present special considerations and opportunities for the defendant and his attorney.  Such cases are often less difficult to defend than alcohol cases. In alcohol cases, the law presumes the driver was under the influence if her B.A.C. exceeded .08.   In contrast, the law does not create any presumptions of D.U.I. based on the level of any other drug present in the driver’s blood. To obtain a conviction in a drug case, the prosecuting attorney will have to prove much more than the amount of any particular drug detected in the driver’s blood.  This requirement creates many potential advantages for the defendant and his attorney.

To find out whether you may have a right to a temporary driver’s license and an administrative hearing through the D.M.V., whether you have valid defenses to drug or alcohol driving charges, and for other advise relating to D.U.I., D.U.I.D., D.W.A.I. and similar legal matters, please call or visit our offices today.

Colorado Law recognizes and treats Common Law Marriage precisely as it does licensed, ceremonial marriages.   However, most people have very little understanding about what creates a Common Law Marriage.  For example, many people ask us ‘”but don’t I have to live with my ’significant other’ for at least seven years before we can have a common law marriage?”  The answer is simply “NO!”  Colorado Law requires no minimum period of cohabitation for creation of a Common Law Marriage.  The requirement for such a marriage really comes down to whether both parties intend to be married and whether they have lived together in the State of Colorado with the necessary intent.

Common Law marriage may affect the rights of “unmarried” couples in many situations, including: dissolution of marriage, parenting rights, child support, alimony or maintenance, estate planning, and distribution of property under a will or similar situation following death.   For more information about how  Common Law Marriage may affect the legal rights and duties of “unmarried” couples in Colorado, call or visit our offices today.

During the past few years, the  Colorado Legislature has several times amended the Colorado Common Interest Ownership Act (CCIOA) by imposing new requirements for “good governance” policies.  Among other things, HOA’s must now include with their “good governance” policies specific provisions concerning creation and administration  of reserve funds.  Failure to comply with CCIOA’s “good governance” policy requirements may adversely impact the HOA’s ability to enforce covenants against non-complying home owners.  For more detailed information about this new requirement and other legal issues affecting creation and management of HOA’s, call or visit our offices today.

Even in our difficult  economy, inability of a homeowner to make timely payments on mortgage or trust deed debt does not always lead to foreclosure.  A deed in lieu of foreclosure may avoid the foreclosure process for both lender and borrower.  With a deed in lieu of foreclosure, the property owner deeds the property back to the lender   in exchange for release of the debt. The lender typically promises not to initiate foreclosure proceedings and to terminate any existing foreclosure proceedings.  The lender may also  forgive any loan deficiency (the amount of the loan  not fully recovered by the lender upon subsequent resale).

In today’s real estate market, many borrowers may offer seller-carry lenders a deed in lieu of foreclosure.  Whether accepting the deed makes sense for the lender depends on many factors, including: value of the property, buyer/borrower’s over-all financial situation, amount remaining on the mortgage/trust deed, and whether the buyer/borrower has further encumbered the property since purchasing from the seller/lender.  If the property has no other encumbrances and substantial market value in excess of the amount outstanding on the note carried by the seller, a deed in lieu may be a good way for a lender to resolve the situation and avoid the cost of a foreclosure.  On the other hand, if the value is questionable, or if the buyer has created junior encumbrances, a deed in lieu may be a mistake for the lender.

For more detailed information about deeds in lieu of foreclosure and other real estate law issues, call or visit our office today.