What Do Lawyers Think About Before Their Client Files For Divorce? | Episode 5

In Episode 5, Ryan and Amy discuss what pre-filing considerations come to mind in Eric Wolff’s story after his initial consultation when he makes the decision to hire a divorce attorney. They go over different scenarios that can affect the timing of filing, such as a recent move to Colorado from a different state, or upcoming trips, and address how collaborative law or a private judge can be used in some divorce cases. 

In This Episode

-       Timing of filing for divorce

-       Jurisdiction or venue considerations

-       Automatic Injunctions

-       When can collaborative law be applied to a divorce?

-       What are the benefits of having a private judge?

-       Changing of passwords and how social media can impact a case

-       When to open a separate bank account

-       Child support 

-       Joint or separate filing
 

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What is Divorce at Altitude? 

Ryan Kalamaya and Amy Goscha provide tips and recommendations on issues related to divorce, separation, and co-parenting in Colorado. Ryan and Amy are the founding partners of an innovative and ambitious law firm, Kalamaya | Goscha, that pushes the boundaries to discover new frontiers in family law, personal injuries, and criminal defense in Colorado. 

To subscribe to Divorce at Altitude, click here and select your favorite podcast player. To subscribe to Kalamaya | Goscha's YouTube channel where many of the episodes will be posted as videos, click here. If you have additional questions or would like to speak to one of our attorneys, give us a call at 970-429-5784 or email us at info@kalamaya.law.

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DISCLAIMER: THE COMMENTARY AND OPINION

What is Divorce at Altitude?

Ryan Kalamaya and Amy Goscha provide tips and recommendations on issues related to divorce, separation, and co-parenting in Colorado. Ryan and Amy are the founding partners of an innovative and ambitious law firm, Kalamaya | Goscha, that pushes the boundaries to discover new frontiers in family law, personal injuries, and criminal defense in Colorado.

To subscribe to Divorce at Altitude, click here and select your favorite podcast player. To subscribe to Kalamaya | Goscha's YouTube channel where many of the episodes will be posted as videos, click here. If you have additional questions or would like to speak to one of our attorneys, give us a call at 970-429-5784 or email us at info@kalamaya.law.

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DISCLAIMER: THE COMMENTARY AND OPINIONS ON THIS PODCAST IS FOR ENTERTAINMENT AND INFORMATIONAL PURPOSES AND NOT FOR THE PURPOSE OF PROVIDING LEGAL ADVICE. CONTACT AN ATTORNEY IN YOUR STATE OR AREA TO OBTAIN LEGAL ADVICE ON ANY OF THESE ISSUES.

Transcript

Ryan Kalamaya:
Hey everyone. I'm Ryan Kalamaya.

Amy Goscha:
And I am Amy Goscha.

Ryan Kalamaya:
Welcome to the Divorce at Altitude: A Podcast on Colorado Family Law.

Amy Goscha:
Divorce is not easy. It really sucks. Trust me, I know. Besides being an experienced divorce attorney, I'm also a divorce client.

Ryan Kalamaya:
Whether you or someone considering divorce or a fellow family law attorney, listen in for weekly tips and insight into topics related to divorce, co-parenting and separation in Colorado. Welcome back to another episode of Divorce at Altitude. I'm Ryan Kalamaya, joined by my co-host and business partner, Amy. How's it going?

Amy Goscha:
Good. How are you doing Ryan?

Ryan Kalamaya:
I'm doing well. Just got done skiing and ready to talk about pre-filing considerations. And we thought it would be helpful for people to understand what do divorce lawyers think about when a person comes into their office or consult with them and they haven't filed. So, Amy, what are the things that you're thinking about? Or can you walk us through the issues before someone even files. What are the legal issues that you often think about or come up in a divorce?

Amy Goscha:
Yeah. So where we left off in our last podcast episode with Eric was in our office for his initial consultation. So he's left, he's hired us. And so now we're at the point where we really need to think about what do we do next? And so there's a myriad of questions going through my mind. And so one of the first ones I think about is timing of filing, it's probably the first question I actually ask myself. What do you think about Ryan when you're thinking about timing on filing?

Ryan Kalamaya:
Well, I always ask people what their expectation is on timing. Under Colorado law, you can't get divorced within 90 days. So you have, there's a cooling off period. That's kind of a vestige from back in the day, but if we're in September, there might be a reason to race to the courthouse and file, but we don't want to do that and upset the other party, if that is a goal or a consideration, which it usually is. So the timing is figuring out is the person in a rush? Are there other factors, such as people depleting money from bank accounts, travel with the children, those sorts of things. When you say timing, that's what I usually think of. Are there other things that come to your mind?

Amy Goscha:
Yeah. So that kind of dovetails into jurisdiction. So what are some of the jurisdiction considerations that you would be thinking about?

Ryan Kalamaya:
Well, Eric and Melanie, and just as a reminder, that is Eric Wolff story in our first episode on our website. We have this hypothetical situation of Eric Wolff and Melanie, but going through a divorce here in Colorado. So I practice mostly in Aspen, there's definitely strong correlation or connection with other places. Houston, New York, there are people that fly in and out and they have multiple houses. And so when, in terms of jurisdiction, one party has to be domiciled in Colorado before they file. And so that is certainly a consideration. If someone has just moved here, let's say last month. They escaped New York city and wanted to come and lay down routes in Aspen, which we've certainly seen a fair amount of, that's going to bring up an issue with jurisdiction. And so then you also have other issues. And I think Amy, you're referencing with jurisdiction venue in my area, Garfield County, Eagle County, Pitkin County.

Ryan Kalamaya:
There's areas like in Basalt, I think there's a 7-Eleven where the County line goes down, so the snicker bars are in Eagle County and then the Gatorade is in a Garfield County. And, but you can choose sometimes what we will do is we will purposely choose. I don't think that for you down on the front range, that's as much of a consideration, but those jurisdictional issues is certainly something that you have to consider. Amy, any other comments that you have?

Amy Goscha:
Yeah. What I'm thinking about in the Metro area is actually the timing. Like there are certain courthouses and actually counties that do things quicker. So depending on if I want it done quicker or not, that's also a consideration.

Ryan Kalamaya:
Right. For me, the venue, the things that I'm thinking of are what the issues are, but where the people work, where the courthouses, but certainly some of the issues. In Garfield County, you have one of four judges. So it's kind of a lottery system. Whereas in Pitkin County, there is one judge and we know that judge's preferences and how he operates. Eagle County, same thing, that I can tell people, I know, I've interacted with those judges when they were private lawyers and that's going to drive what we end up doing, right?

Amy Goscha:
Yeah, absolutely. So thinking about the beginning of the case, the other question I would ask you is what are you thinking about regarding the automatic injunction?

Ryan Kalamaya:
Well, so what you're referencing is under 14-10-107, there's an automatic injunction that goes into place. It's on the petition for dissolution and there's going to be an automatic restraining order or injunction that goes into place for keep maintaining the status quo. So the insurance health insurance, life insurance, there's a prohibition on traveling outside of the state with kids, unless you have court permission or the permission of the other party. There's not supposed to be any major transactions. And so I would ask the client, Eric, "Hey, are you going to be leaving for spring break? Are you trying to go into Mexico for spring break? Because that might impact the filing." And we might want to work that whether he's going with Melanie or not, but those are certainly considerations that I'm looking at on my end and making sure that I advise the client.

Ryan Kalamaya:
That said, it's never like we're going to hold off on filing in order for you Eric, to drain the joint bank account of $200,000, because there's no automatic injunction. If you want to a nuclear bomb on a case that certainly some gamesmanship that you can do, and there's clearly a remedy for it. We'll get into that with dissipation of assets, but Amy, any other things that you're thinking of with the automatic injunction?

Amy Goscha:
Yeah. I mean, this was kind of a random thing starting the case, but I'm also looking at like the titling of property and if there needs to be a refinance, whether or not, because a lot of times, if someone wants to refinance their property, they have to wait until the divorce is done. So it can halt that. So I've actually set it up where, if we know that Melanie's going to keep the house, we might try to work on a refinance depending on, I know she's not working so, but that's something that I would consider or at least ask Eric, like, is he going through any refinance or what is he doing with his business? Like, is he applying for any kind of loans? What does that look like? The other question I would have is Melanie a flight risk. Does it seem like just because she's mad about the affair, is she going to abscond with the children? Because I might want to file quickly to get that auto injunction in place so she can't leave the state of Colorado without agreement of Eric or a court order.

Ryan Kalamaya:
Yeah. For me, I would ask Eric, is there any risk of parental relocation here? Is Melanie, whether there was, or was not an affair in his situation, but Melanie is, let's say that she's from Chicago and that she's going to go back to Chicago. Amy, We've certainly seen circumstances where a party goes to their home, Chicago, with the kids, and then they refuse to come back and that can really cause some major issues. And so I want to make sure have we addressed that. You referenced refinancing or the business, Amy, one thing certainly that's going to come up in my mind is collaborative law, whether or not Eric and Melanie's divorce is appropriate for collaborative divorce. For those that don't know, what is collaborative law? What is a collaborative divorce?

Amy Goscha:
Yeah. So in Colorado we have like, what's called a little C collaborative and then kind of the big C collaborative. So little C collaborative is where you've picked two lawyers who are working together and civility is a really big piece of it, to keep things amicable through the process. The big C collaborative is that you actually hire two lawyers who are committed to the collaborative process. You signed a collaborative agreement and if Melanie and Eric don't actually settle their case and try to take it to trial, then they have to hire new attorneys. There's actually a incentive to settle things outside of court and you can do joint experts. It's really a great process for people to do it how they want to. And that's really a big thing in the Metro area because like there's certain counties where you won't get a divorce final hearing for a year or two, depending on the docket.

Amy Goscha:
Up in the mountains, my experience from working in Eagle County is, it's not as much of an issue, but we're going to be looking for those alternative ways to really move things along in the positive direction and not just waiting because that's one thing that is going to really help Eric, is that he's going to want to get through the process and to move on to the next part of his life, as soon as he can, instead of waiting a year or two for a trial. So Ryan, when you're thinking about other alternatives, what about hiring a private judge? Can you tell us what that would look like.

Ryan Kalamaya:
In Eric's situation, I would certainly bring up the option of a private judge. It's not for everyone, but there's a little known mechanism in which the Colorado Supreme Court will sign off on a former judge traditionally with an organization like JAG or JAMS, the Judicial Arbiter Group, that you can hire a private judge. And they're former judge. We frequently have used them in cases that are high profile, that people are concerned about the sophistication of the judges, the time that they're going to be allowed to present their issues. And you can select a judge that has more experience with children or is a little bit more business savvy than what would normally be the default. You have to pay for them. But the benefits are that it's completely private. You can do it in a conference room with a trial in a conference room, you get to dictate the timing and you pay for it, but if you want to work around your work schedule or your trial schedule, you can certainly do that. And we'll have another episode on that.

Ryan Kalamaya:
But arbitration is certainly another option and you could kind of sever off of one aspect such as the business that you could have arbitration on that particular issue. So those are the pre-filing considerations. Going back to the collaborative law, we'll have an episode on that, for sure. There's some ethical issues that Colorado is a little bit unique in that respect, but I think your point is well-taken Amy, about the timing and that is that right now, we're in the midst of COVID. There haven't been any jury trials when we're recording this, they're now going to start having jury trials. And there's a general fear that the jury trials, the criminal trials, there's a huge backlog. And when you bump domestic trials, we're going to be looking at, in particular for kid, issues for child issues, it's going to be very difficult to get a time where a judge is going to be able to hear your issue. So that is something pre-filing that oftentimes we're going to work through no matter if you're in the mountains or if you're in the Metro area.

Amy Goscha:
Right. What if Eric also, would you be considering social media and passwords? What would your advice be to Eric about those types of issues?

Ryan Kalamaya:
Well, frequently what we see is there's kind of a rush to gather up information. And we've seen, we don't want to disparage Melanie, but we certainly have seen people hack into other email accounts. So for us, our normal practice is to advise people that they should change their passwords and that they should stop posting on social media. We're going to have a whole episode. I think it is an overlooked area, especially by divorce lawyers who may not be all that savvy. But at the very beginning, our practice is to send out what's called a litigation hold letter and an advisement on social media. And that means that you need to change your privacy settings. It does not mean that you delete anything because you can get in big trouble for deleting information. But what it does mean is at the very beginning, I'm going to say, "Hey, Eric, Instagram, Facebook, Twitter, you might be down with that, and you're going to go through stressful times and you're going to be tempted to blast Melanie on Facebook, it is not worth it. It's going to come back to haunt you."

Ryan Kalamaya:
And I always tell a client that if you don't want the judge to see an email, you need to be mindful of everything that you write, whether it be text messages, emails. And if I go through and ask him, are there things out there that either exist on your social media or in your email or on Melanie's? Because those are the things that I want to preserve. And frequently what we do is we download all the text messages and that's not necessarily a pre-filing consideration, but certainly when things start ramping up, as they often do in a divorce, when you file, there are certain restrictions that go into place. Amy, anything else that you can think of when it comes to social media or passwords?

Amy Goscha:
Yeah. What about, like your iPhone, a lot of times it will be set up for it to delete messages after 30 days. So what would you advise Eric about his various devices?

Ryan Kalamaya:
Well, so we have, and Amy, you know this, I mean, we have a series of emails that go out to every single client and it's standard stuff, telling them about the attorney client privilege. But one thing that we cover is to make sure that you look at the settings on your iPhone and before you trade it in, let us know. But we had a case and one we involved with social media and children, and we asked for text messages and the wife, she had just unbeknownst, or at least she claimed to have a setting that just deleted her text messages after I think it was 30 days.

Ryan Kalamaya:
And so we were in the middle of the case and we had asked for text messages going back a year, the judge agreed, we were entitled to it and she had deleted them. And so an adverse inference was entered and it was a situation that the other side just didn't realize that they needed to preserve that information. So we always tell clients change your settings and make sure that you walk us through anything that may be out there that could be relevant to your case.

Amy Goscha:
Yeah. So going in a different direction, what if Eric asks about, can I set up a separate bank account? What is your advice? And as the lawyer, what are you thinking about?

Ryan Kalamaya:
From a lawyer standpoint, I know that at the end of the day, they're going to need their own separate bank account and that we're going to likely just close down the joint bank accounts. And so for them to open up their own bank account is a natural step, but whether they deposit their, their paycheck in there going forward, that really depends on the circumstances of the case. You want to maintain the status quo. You want to respect the automatic injunction, but doing those kinds of things can be disruptive. And it's something that I would ask, have you transferred any money, significant money? Have you already set something up? Those are the pre-filing considerations, certainly that I, as a divorce lawyer, I'm going to go through with my client and ask him, does Melanie, what access does she have to money? Because once you file, then everyone kind of comes on under the microscope. And those little transfers can take on a disproportionate importance after you file.

Amy Goscha:
What about in our scenario, Eric has children. What would you be thinking about pre-filing regarding parenting time for the children?

Ryan Kalamaya:
Well, in our last episode we talked about who moves out, pre-filing, I would ask, what are we doing for the children's expenses? Where are they going to go to school? Those are the sorts of things that certainly are going to be running through my mind. Pre-filing one thing that people are often surprised about is that child support starts the later of filing compared to when a party moves out. So there are circumstances in which a party may hold off on filing because of child support purposes. And it's not to avoid paying child support, but it is a factor that at least we, as divorce lawyers have to consider is what impact is that going to have? And then certainly I think what we would have is a conversation about how often did you see the children before you separated and before you filed? And is there an opportunity there to change, maybe the arrangements in a manner that over time is going to be easier because if someone says, since the date of filing, they have seen the children X number of times, that can be impactful for a judge.

Amy Goscha:
Yeah. So in Eric's situation, Melanie, he's found drinking or wine bottles in the trash. I would probably really hone in on that issue before pre-filing, I'm really looking at like, are there some emergent issues that I need to deal with? Am I going to have to file some type of, not emergency motion necessarily, but a motion for temporary orders right away. And we'll get in more to those types of filings, but I'll be considering all of those things too.

Ryan Kalamaya:
Yeah. Certainly the protection orders, those can oftentimes come at the same time as a petition for dissolution of marriage. That can be a real nuclear bomb when it comes to how a case is going to go. But those are certainly factors that we as divorce lawyers have to go through pre-filing and at the immediate case or immediate onset of the case. Temporary orders, spousal maintenance, parenting time, all of those things are certainly factors that we are going to walk through with Eric before we file. I think also what you mentioned is how are we going to communicate about filing, that is frequently something that comes up. Eric, do you feel comfortable sitting down at the kitchen table with Melanie and talking about our marriage is over. I mean, Eric is reluctant. There's usually a difference in where people are emotionally in terms of filing. Eric strikes me is the type of person that he doesn't want this, or at least he's behind Melanie in terms of the emotional aspects.

Ryan Kalamaya:
But with Melanie, I'm probably walking through her, "Hey, how do you want to communicate to Eric about filing? Do you want to file joint? Is it going to come from a email, a letter," those types of things, that is a real strategic discussion that we have with our clients is how do you communicate about even filing in the first?

Amy Goscha:
Yeah. And in this case, having a therapist, even though Eric cringes every time he has to go into the therapy session, maybe this is a time that we advise we'll set up a joint therapy session. So those are all considerations.

Ryan Kalamaya:
Certainly. And I think to the extent that people are talking about what's going to happen, sometimes that happens where they'll say, "We're going to agree to equal parenting time," in that circumstance the filing might disrupt or incentivize a party to ramp things up. And so we might be able to get things resolved, but going back to one thing we mentioned is the business is that if we file and that gets out into the public domain, and there's some business concerns there that might be something that we discuss ahead of time, is there a risk that you're going to have to disclose this divorce because you're on a road show for an IPO or you're going to sell the business. And those are the factors. I mean, when you are selling real estate, oftentimes people will look to see, are they selling it because of a divorce?

Ryan Kalamaya:
And they'll see if there is filing, we can do stuff about that. There's a motion to limit access that we frequently file, but those are the issues that certainly we are going through. And the last point, at least for Melanie, is there an opportunity to gather up information that would not otherwise be available once people separate, once people file. And that is certainly a consideration is right now, maybe the best opportunity for Melanie in particular to gather up information. But Eric might be the kind of guy where he runs his business and he has no idea what's going on with their personal finances. We certainly have seen that where that might be a consideration pre-filing that we talk about in terms of who's going to get the information, what information is there? Are there trust agreements? Are there estate planning documents? Are they in the home office? Or is there an opportunity there to preserve that that might be more difficult before we file as a compared to after we file.

Amy Goscha:
And also, you might not file for a while. Like you might end up, if you're doing the collaborative process and going down that road, reaching agreements on everything and then filing a co-petition with all the agreements.

Ryan Kalamaya:
Yeah. And I think another pre-filing consideration, is there a particular expert or are there other people that we need to bring in and what's the general trajectory of this case? Is it going to be the both parties are going to race to their own expert, their favorite expert and try to conflict another, that certainly happens. It depends on who the other lawyer is. It depends on what you hear from Eric. All of those things are going to be pre-filing considerations. And I'm sure Amy, we can just keep on going on and on, but I think that's a good place to kind of wrap it up. We're going to go through all of these things, but those at least from a divorce lawyer standpoint are raised by Eric's story, right?

Amy Goscha:
Agreed. Yes.

Ryan Kalamaya:
Okay. Well, next episode, we're going to continue to kind of walk down Eric and Melanie's story. Thanks again for listening to Divorce at Altitude. If you've left a review, thank you very much. And if you haven't, please subscribe and leave a review and tell a friend.

Ryan Kalamaya:
Hey everyone, this is Ryan again. Thank you for joining us on Divorce at Altitude. If you found our tips, insight or discussion helpful, please tell a friend about this podcast. For show notes, additional resources or links mentioned on today's episode visit divorceataltitude.com. Follow us on Apple podcasts, Spotify, or wherever you listen in. Many of our episodes are also posted on YouTube. You can also find Amy and me at kalamaya.law or (970) 315-2365, that's K-A L-A-M-A-Y-A.law.