Losing a loved one is never an easy thing. Regardless of the nature of your relationship with the deceased, whether, for example, the decedent is a relative, husband/wife, boyfriend/girlfriend, best friend, or important decision-maker in your life—you need space and time to process and grieve your loss. After having had space to cope with everything that has happened, you may need to include your loved one's death as part of an update to your estate plan. If you have an estate plan, one of the first things you should do when a loved one has died is to review the documents with the following questions in mind: 1. Does your will or revocable living trust name the person who died as beneficiary of money or property? If so, do your documents have any language dictating what is to become of that money or property should the named beneficiary predecease you? One of the main purposes for drafting a will or a revocable living trust is to plan for what will happen with the items you own upon the time of your death. To the extent you have preferences as to who receives your money and property, you must name who will inherit from you and also name who will inherit money and property if your first choice dies before you. If your will or trust does not name an alternate beneficiary for this gift, then upon the death of the first-named beneficiary, that gift is revoked and the accounts and property you wanted to leave to your loved one enter into your general estate and will pass according to the remaining terms of your will or trust. This could be possibly problematic if the beneficiary has a spouse, children, grandchildren, or other loved ones that you might have wanted to leave the beneficiary's inheritance to instead. Some states, including Colorado, have enacted antilapse statutes to prevent this result. If the beneficiary is dead, the gifts will descend to his or her heirs in such states. There are several exceptions and variations from state to state. For example, some states limit the beneficiaries of antilapse statutes to relatives by blood. 2. Is a trusted decision-maker now deceased? As part of your overall estate plan, you likely selected several different important decision-makers to act on your behalf if you become incapacitated (agents under your financial and medical powers of attorney and a successor trustee) or to wind up your affairs after your death (a successor trustee or personal representative). If your deceased loved one held any of these positions, make sure a backup was nominated. If not, you need to update the affected document to include a new first choice and at least one alternate. If you have already named a backup in the document, you will want to update your document to name your backup as your new first choice and remove your deceased loved one’s name to prevent confusion when a third party reviews the document. Personal representative (also known as an executor). This trusted individual, appointed in your last will and testament, is responsible for collecting all your accounts and property, paying your outstanding debts and taxes, and distributing your money and property to your named beneficiaries after your death. This person’s task is to wind up your affairs, which can be time-consuming. If your chosen personal representative dies before you and there is no named backup at the time of your death, the probate court will use Colorado law to determine who is next in line to serve as personal representative. Co-trustee or successor trustee of your trust. Serving either with you (as co-trustee) or after you become incapacitated or die (as successor trustee), this trusted person or entity is charged with managing, investing, and distributing the money and property from your trust to you during your lifetime (if you are incapacitated or are otherwise unable to act as trustee) and to your chosen beneficiaries after your death. If your deceased loved one was a co-trustee with you, you should review your trust agreement to see what happens next. There may be a provision that either allows you to continue serving as the only trustee, names a specific person to step in and serve with you as co-trustee, or describes how to determine who your new co-trustee will be. If your deceased loved one was named as your successor trustee, nothing noticeable will happen with respect to how your trust is managed right now. However, if you become incapacitated or die and there is no successor trustee, your loved ones must look to your trust agreement for guidance on filling the vacancy. Your trust may provide that a certain number of your beneficiaries can appoint a new trustee without court involvement, or your trust might require that the court approve any new trustee. The outcome will depend on the trust’s wording and Colorado laws. Because your trust is revocable and amendable during your lifetime, it is best to update your trust to appoint a new successor trustee or change any of these provisions as needed while you still have the ability to do so. Agent under a financial power of attorney. Your agent is an individual you choose to manage your property and finances (such as communicating with your mortgage company, paying your bills, or accessing funds in your bank account for your care) on your behalf. If the person you selected is deceased and there is no named backup, no one else can act on your behalf when needed. If you become unable to manage your property and finances without appointing an agent in a financial power of attorney, your loved ones will have to go to court and have someone appointed by a judge to take care of your financial and property matters. The judge will make this determination based on Colorado law, which prioritizes certain individuals to serve in this role, and the person selected may not be the person you would have chosen. Not only is this process time-consuming during a stressful time, but it can be expensive and exposes the details of your condition and family dynamics to the public. Agent under a medical power of attorney. Your agent under your medical power of attorney is typically authorized to make decisions or communicate your medical wishes in the event you are unable to do so yourself. Because this person can act only when you cannot, you may not feel an immediate need to update your medical power of attorney if your chosen agent has passed away. However, if you have an accident, become incapacitated, or are otherwise unable to communicate your medical wishes and you do not have an agent who can act for you, your loved ones must go to court to have a guardian appointed before anyone can speak on your behalf. The judge will look to the standards and guidelines under Colorado law to aid them in appointing the appropriate person, who may not be the person you would have chosen to make your decisions. Second, the selected person may not know your wishes about the medical care you want to receive. Guardian for your minor child . You have likely invested a lot of time and consideration in deciding who you would like to serve as the guardian of your minor children if you and the children’s other parent are unable to care for them. If the loved one you have selected has passed away, it is imperative that you update this selection. While your circumstances may vary, if your chosen guardian is unable to serve for any reason, and you have no alternate guardian nominated, the court will determine who will raise your child. As with other roles, the selected person may not be the one you would have chosen, and absent input from you, the judge may have limited information when making this critical decision. Attorneys at Ross Law P.C. Are Here to Help: We are aware that you are dealing with the death of a loved one. When the time is right for you, we're here to help you take the next step in your estate plan - whether it's creating, completing, or updating it. Call to schedule your in-person or virtual appointment.

The Fair Labor Standards Act (FLSA) has many nuances that can create legal pitfalls for employers who are unfamiliar with each and every one of its intricate requirements. One such area is the compensability of a non-exempt employee's time spent traveling to a location that requires an overnight stay away from his or her home. As a general matter, the FLSA requires employers to pay non-exempt employees for their rime spent working. While the FLSA does not explicitly define what constitutes "work," the Portal-to-Portal Act provides that employers do not need to compensate employees for traveling to and from the actual place of work performance and the employee's home, and FLSA regulations reiterate that normal travel from home to work is not compensable work time. Thus, these standards make clear that compensable work time generally does not include time spent commuting to or from work. However, compensation for a non-exempt employee's travel time that requires an overnight stay is subject to a different FLSA regulation that provides an employee's time spent driving to a location that keeps the employee away from home overnight is compensable when it cues across the employee's workday or the employee's regular working hours on nonworking days. The Regulation provides as follows: Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly worktime when it cuts across the employee's workday. The employee is simply substituting travel for other duties. The time is not only hours worked on regular working days during normal working hours but also during the corresponding hours on nonworking days. Thus, if an employee regularly works from 9 a.m. to 5 p.m. from Monday through Friday the travel time during these hours is worktime on Saturday and Sunday as well as on the other days. Regular meal period time is not counted. As an enforcement policy the Divisions will not consider as worktime that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile. 29 C.F.R. § 758.39. For example, imagine that Pete, an hourly employee who regularly works 9 a.m. to 5 p.m., Monday through Friday, leaves work on Friday afternoon at 2 p.m. and drives three hours away from his home community to the location of a training seminar to be held the following day from 9 a.m. to 4 p.m. Immediately following the training seminar, Pete drives the three hours back to his home. Under this scenario, Pete must be compensated for the three hours he spent driving on Friday afternoon and for the one hour he spent driving between 4 p.m. and 5 p.m. on Saturday (whether the time spent at the training seminar is compensable is an issue for another day and the issue is subject to different regulations focused on not only whether the training was during Pere's normal hours, but also whether it was job-related, voluntary, and if other work is performed concurrently). What's more, if Pere had worked a full week leading up to the training seminar, that hour from 4 p.m. to 5 p.m. driving on Saturday would constitute overtime and, therefore, it must be paid at time and one half.

Parties to domestic relations cases in Colorado will nearly always be required to mediate their claims before a court will hold a contested hearing on the issues as mediation is required in most non-emergency cases. Often, our clients and potential clients have questions surrounding the mediation process, what it entails, and why it should be viewed as an opportunity rather than just a ‘box to check’ in the course of the litigation. The underlying reason that mediation is required in these cases is because contested court hearings are generally held as a matter of last resort. The reasoning behind this is simple: the court system has limited judicial resources, crowded court dockets, and the anticipated fees that could be saved by each side by resolving the disputes rather than preparing for contested hearings. In other words, contested hearings are reserved for those situations where the parties cannot resolve their issues without court intervention. Thus, mediation is a tool used to facilitate resolution. It is also important to note that what happens in mediation, and specifically the positions that a party takes with the hope of resolving a case, are strictly confidential and cannot weaponized against the party at a contested hearing. This allows a party to take a position at mediation that the party would not otherwise take a trial. Here at Ross Law, we encourage our clients to be open to resolving the disputes they have with the other side, because at the end of the day, reaching a resolution allows our clients to have a say in the outcome of the case unlike a contested hearing which will be decided entirely by a judge who likely has never met either party, lacks an adequate understanding of the nuances of the disputed issues, and has no personal stake in the outcome of a case. Hence, we approach mediation differently than other firms by viewing it as an opportunity to grab the case by the reins and steer the outcome in a direction favorable to our client’s needs. The nuts and bolts of setting mediation may vary county-by-county, but generally it involves the following: • The court will set a deadline by which the parties are required to complete mediation. • Thereafter, the parties’ attorneys will propose a few mediators to the other side. Hopefully, one or more of the mediator names that the parties propose will overlap, which simplifies the selection process. • Once a mediator is agreed to, the attorneys will request the mediator’s availability and then confirm dates with their respective clients. • The mediator will circulate a mediation agreement, which all parties and their attorneys will need to sign. • A few days before the mediation, both sides will prepare and submit confidential mediation statements (confidential in the sense that the mediator will not share the statement with the opposing party) to give the mediator some basic background information. • In this post-covid world, nearly all mediations are conducted electronically (typically Zoom). The parties will login to the Zoom call using the credentials provided by the mediator. • The mediator will place the party and his/her attorney in a separate virtual breakout room. • The mediator will likely then start the mediation in the virtual room assigned to the petitioner or the moving party, depending on the nature of the case. • The mediator will listen to the parties’ arguments and demands. • The mediator will then head into the opposing party’s room to get the other side of the story and the opposing party’s demands or counter offers. • The mediator will go back and forth into the rooms until either 1) an agreement is reached in principle; 2) one of the parties decides mediation is not going to result in any resolution on any issue; or (3) the time of the mediation runs out (in which case the parties may be able to go later in the day subject to the mediator and counsel’s availability, schedule a second mediation, or continue the negotiations through counsel). • If a resolution on any issue is reached, the mediator will prepare a Memorandum of Understanding (“MOU”) that details the specifics of the agreement. One of the parties will then file the MOU with the court along with a proposed order. The MOU becomes an order of the court once the court signs the order adopting it. • If no resolution is reached, the mediator will circulate a mediation completion certificate, which will be filed by one of the parties. • Both sides will then begin preparing for a contested hearing. If you have any questions or concerns about mediation, please reach out to schedule a call with one of our experienced attorneys.

Divorce can be one of the most challenging and emotional experiences. Follow these key tips when selecting a local divorce attorney to ensure quality support.

In today’s world, many children own or have access to their own cell phones. Despite wide usage by minor children, co-parents often disagree about how to monitor and regulate their kids’ cell phone usage. For example, one parent may purchase a cell phone for his/her minor child and allow unfettered access during that parent’s parenting time while the other parent may be weary of the dangers lurking on the internet. One common situation involves a parent wanting to remain in contact with his/her child while under the care of the other parent, who may or may not allow the child to have the cell phone while under his/her care. Unfortunately, this type of co-parenting issue may worsen if the parties have not agreed to age-appropriate cell phone rules in their parenting plan. As a result, it is advisable to plan for the eventuality that a child will likely come into possession of a cell phone prior to reaching adulthood by legislating rules for cell phones in a parenting plan. Reaching an agreement on a child’s cell phone usage generally will require one of the parents raising it as an issue to be discussed during negotiation or mediation. If neither parent raises it, then it is unlikely to be raised by a mediator because of other issues in the case that must be resolved. Generally, it is in the child’s best interest to have regular communication with both parents, and both parents should have access to communicate with their children daily. As such, one potential benefit of providing a child with a cell phone is that it can reassure the child that he or she can reach out to either parent at any time. A cell phone can also be used to combat parental alienation by allowing the child to remain in contact with both parents. However, a cell phone provision in a parenting plan should specifically designate certain perimeters for its use. For example, reasonable hours, duration, and intervals for use are helpful in limiting screen time and avoiding disruption of family activities. Consideration should also be given to the child’s age and level of maturity. Along those lines, co-parents may decide that providing a child with a cell phone without internet access is the most age-appropriate solution in some cases. Other issues to consider before allowing a child to have access to a cell phone include how to divide the costs associated with purchasing a phone, its monthly costs, and control over the account to which the child’s cell phone is assigned. Also, many parents discipline their children by restricting access to screens, which can cause issues for co-parents when the non-disciplining parent opposes restricting the child’s access to a phone.  In sum, it is important to remember that there is not a “one size fits all approach” to a parenting plan. Likewise, the circumstances involved with providing a child with a cell phone will vary case by case. Given the complexity of the issue, a parent should consult with an attorney to determine what makes the most sense for his or her specific situation. Here at Ross Law, we have negotiated countless parenting plans that include cell phone provisions that are narrowly tailored to our clients’ specific needs.

For divorced or separated parents who share parenting time over their minor children, the process of obtaining court permission to relocate with a minor child can be a complicated and long process as the judge will need to consider each parent’s wishes and the best interests of the child. As a result, it is imperative for parents in Colorado to understand their rights and responsibilities during the relocation process. To begin, the parent who wants to relocate with the child must give the other parent written notification of the relocation plans. With this notification, the parent must provide a proposed modified parenting plan and specific information about the reasons for the relocation and the location that he or she plans to move to. Ideally, parents should provide of an intent to relocate before filing a motion for relocation. Best Interests of the Child If relocating with a child will substantially change the geographic distance between the residences of the child and the other parent and the other parent objects to the relocation, the court will consider any of the statutorily provided factors in determining what is in the child’s best interests. Specifically, the court may assess: How the move will impact the child. Specifically, the court may examine how the move will affect the child’s educational and social opportunities, access to extended family, access to medical providers (especially specialists in the pediatric fields), and general well-being. The reasons for the relocation and the objection. The court may consider whether each parent has legitimate motivations or is simply trying to impede the other parent. The relationship between the child and each parent. If one parent has acted as the primary caregiver or enjoyed a closer relationship with the child, the court will take this into account. The ability of the parents to foster the relationship with the other parent. If one parent has a history of alienating the other parent, a court may find that adding geographic distance between the alienated parent and the child is not in the child's best interest. Former actions or inactions of a parent. The court may consider harmful behaviors by one of the parents. The feasibility of both parties sharing parental responsibility if the relocation is permitted. Generally, a court will not deviate from joint decision making even if it permits one parent to relocate with a minor child. Timing of a relocation For many parents, it is difficult to plan logistically for a move to a new city. The difficulty in relocating for parents sharing parenting time is drastically increased by virtue of the uncertainty of whether the court will grant the request for relocation. In other words, finding employment, identifying appropriate housing, and choosing a new school for a child in a new city is made even more challenging in those situations where the court has not yet granted a motion to relocate. As a result, parents wanting to relocate must have a plan in place long in advance of their desired move date to allow sufficient time for a contested motion to relocate to process through the court system. Given the complexity of the issues surrounding relocation with a minor child, parents who are preparing for a move can benefit greatly from seeking the help of an attorney who has experience handling these difficult cases. Please call us today should you need an attorney with experience navigating these types of motions in Colorado.

Too often, children are the victims of domestic violence and lack a voice to advocate on their behalf. In addition, introducing child statements in a civil hearing to prove the existence of domestic abuse can be challenging given the broad prohibition of introducing hearsay into the court record. Colorado, however, has enacted a statute that provides an additional exception to the hearsay rule to allow statements by children that relate to sexual assault or domestic abuse so long as certain requirements are met. Hearsay is any out of court statement that is asserted to prove the truth of the matter therein. Generally, hearsay statements are prohibited from being introduced as evidence as the opposing party lacks the ability to confront the declarant. Colorado Rules of Evidence provide a number of exceptions to the hearsay rule (for example: statements regarding a present sense impression; excited utterance; present mental, emotional or physical condition; and statements made for the purpose of medical diagnosis or treatment), but these exceptions are applied narrowly and often would exclude statements made by a child regarding abuse. However, Colorado Revised Statute § 13-25-129 allows a party to a civil case to introduce out of court statements made by a child that is the subject of the action relevant to the proceeding. This statute only applies to statements that are not admissible under any other hearsay exceptions. If all of the statutory requirements are met, the statute allows for statements describing acts or attempted acts of sexual assault where the child is the victim, statements describing any act of child abuse where the child was the victim or the witness and is subject to a dependency and neglect proceeding, and statements made by children under the age of thirteen describing an act of domestic violence. There are several factors that must be considered in determining whether the Child Hearsay Exception statute would apply in a given case. As such, it is important that parties who are dealing with allegations of domestic abuse consult with an attorney to determine what evidence they can present to the court to obtain the relief they (and their children) need. Our firm handles these types of issues daily, so contact us today if you have any questions or need any guidance on navigating these complicated evidentiary issues.

A family lawyer is a very important resource for many things. Take a look at this blog to see the role they play in conflict resolution.

When parenting time (formerly child custody) is an issue, we are frequently asked whether a child gets to “choose” where they live or has other rights in a divorce.  Many clients have heard stories that there is an “age of consent,” and many of our clients were, or know of, a child of divorce who was allowed (or forced) to… The post Do My Children Get To Choose Which Parent They Live With? first appeared on Ross Law P.C..