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The probate process in Colorado is much easier to navigate with an accomplished attorney on your side like Jack Kaufman. You may have more questions than answers when it comes to probate. The Law Offices of Jack P. Kaufman are here to serve you. Contact our offices to schedule a conversation.

Should you really avoid probate? Probate can be an exceptionally thorough process that ensures your property is reviewed and ascribed to the proper parties involved. The Law Offices of Jack P. Kaufman, P.C. can give you the insight you need to properly consider the potential risk or benefit of securing your estate from probate.

One needs to be certain, however, that the decedent died in Colorado, otherwise, these exemptions may be inapplicable.

Intestate Succession and Exemptions Under the Probate Code                         Colorado Revised Statuts  15-11-401,  15-11- 402, 15-11-403 and 15-11-404, and referencing C.R.S. 38-41-402 and C.R.S. 38-41-201 provide the relevant statutes in discussing the subject of exemptions pursuant to the Colorado Probate Code.                          So… in the event that someone dies intestate or otherwise has creditors devouring the estate, the surviving spouse or minor children have recourse in collecting the assets that might otherwise not be sold in order to satisfy creditors.                          In the case of intestate succession, the spouse is entitled to what is otherwise referred to as the augmented estate that allows a dollar recovery and a percentage of the estate before other heirs are entitled to receive any of the remaining assets. It is not the subject of this article, but something that will be explored further in coming articles.                         Colorado Rules of Civil Procedure 15-11-402, 15-11-403 and 15-11-404 are relevant as to the discussion of exempt property.                         These aforementioned statues provide that a surviving spouse or dependent child is entitled to an homestead exemption (an exemption on the family residence) in the amount of $75,000.00,                                    but that amount doubles to $150,000 in the event that the surviving                                             spouse is elderly (at the ripe old age of 60).                         Second there is also an exemption for property in the amount of $26,000 which is adjusted upward by the increase in the consumer price index beginning in the year 2010.                        And last, under section 404, the surviving spouse, minor or disabled child are allowed a maintenance exemption for providing support as would otherwise be allowed under maintenance statutes for up to one year.                       All of these exemptions are deducted from the estate on behalf of the beneficiary and is particularly applicable in the event of intestate succession.                      Other applicable statutes in relation to the homestead exemption are C.R.S. 38-41-201 and 38-41-201 that make allowances for surviving spouse and minor and disabled dependents.                     One needs to be certain, however, that the decedent died in Colorado, otherwise, these exemptions may be inapplicable.       

Probate can be an exceptionally thorough process that ensures your property is reviewed and ascribed to the proper parties involved. The Law Offices of Jack P. Kaufman, P.C. can give you the insight you need to properly consider the potential risk or benefit of securing your estate from probate.

The probate process in Colorado is much easier to navigate with an accomplished attorney on your side like Jack Kaufman. You may have more questions than answers when it comes to probate. The Law Offices of Jack P. Kaufman are here to serve you. Contact our offices to schedule a conversation.

If you were recently involved in an alleged "hit and run" incident, the Law Offices of Jack Kaufman may be able to represent your case. Call 303-297-0688 or contact us directly today.

The first step in defending against a DUI violation in Colorado or a DWAI violation in Colorado is contacting our offices at your first opportunity. Call 303-297-0688 or contact us directly today.

Domestic Violence Revisited Domestic Violence is defined as mean an act of violence or a threatened act of violence upon a person with whom the actor has been involved in an intimate relationship, and may include any act or threatened act against a person or against property, including an animal, when used as a method of coercion, control, punishment, intimidation, or revenge directed against a erson with whom the actor is or has been involved in a intimate relationship. Furthermore, the statute provides that if the court finds that by a preponderance of the evidence that one of the parties has commited domestic violence, has engaged in a pattern of domestic violence, or has a history of domestic violence, then it shall not be in the best interests of the child to allocate mutual decision making over the objection of the other party, unless the court finds that there is credible evidence of the ability of the parties to make decisions cooperatively in the best interest of the child in a manner that is safe for the abused party and the child. The case of In re Bertsch, 97 P. 3d 219 (Colorado App. 2004) is worth considering in the application of this statute. Trial courts traditionally allocate parental responsibilities, including parenting time and decision-making, in accordance with the best interests of the children, giving paramount consideration to the physical, mental, and emotional conditions and needs of the children, after considering numerous statutory factors. Id at pg. 222 of the decision. The case went on to say that under our construction of the statute, in determining whether to award parenting time or individual decision-making responsibility, the court is to consider whether a parent has been a perpetrator of child or spouse abuse, factors in assessing the best interests of the child. Colorado Revised Statute 14-10-124(1.5)(a)(IX)- (X), b (IV)-(V). The case goes on to state that past abuse severely impedes the parents’ ability to work with one another to exercise mutual decision-making responsibility. However, a person’s past abuse or a child or spuse does not necessarily and inevitably mean that history is doomed to repeat itself or that the person is incapable of becoming a fit, or even the more fit, parent. Based on parting time evaluations, and recommendations of the guardian ad litem, the perpetrator of child abuse had been given sole decision making. All this discussion is pertinent in that our firm is currently in litigation regarding the allocation of decision making.  Arguments that the decision making cannot be allocated in light of one party’s conviction of domestic violence is not preemptive or dispositive of the issue in its entirety. Rather, the court still has significant latitude in how it allocates decision making. The ultimate determining factor by the court is whether one party or the other has a significantly greater opportunity to nurture and meet the child’s needs and the ability then to foster a relationship between the children and the other party.

This section also does not apply in cases of injunctive relief or similar equitable relief.

  This list paraphrases some of the requirements. The application has as much to do with the parents ability to nurture the growth and development of the child as much as the relationship with the other parent. The age of the child is always a paramount consideration. For example, a baby should not be moved from one home to another to often with regularity, as that would be disruptive to their own sense of security.  One night a week or every other week for one parent is not excessive or exclusionary. It would be difficult to argue that the mother should not have the majority of the parenting time. It would also be difficult to argue that the other parent is incapable of parenting and that he or she should not have decision making responsibilities as well. One solution fits all. No. However, the courts do what they can to integrate the parents into the life of the child recognizing that both parents need to play an active role.    

Divorce and Allocation of Assets is difficult and at times it is complicated to determine. However, certain things are excluded by statute and are not included in the calculations. For example, it is currently being litigated whether severance pay is allocated as a marital asset. It is not a marital asset. Often times with military pay or the like, three will have to be a determination whether the funds received is severance pay or deferred compensation of some sort. In either case these are not considered marital funds. Pensions and profit sharing are included in the distribution. What about deferred compensation or deferred pensions. The answers to those questions require a decision as to whether those assets have been vested in any way--such that they have a current market value. What about valuation of tangible personal property. A lot of these items are difficult to value. How much is used furniture worth. To buy such items could be costly, but what would be the residual value of these items? Probably not too much? What about proceeds from the sale of memberships and things of that yoke? Well funds received during the divorce from the sale of said assets are marital in nature and need to be included in the division of assets--as they are marital in nature. Definitions of Assets can be found at C.R.S. (Colorado Revised Statutes) 14-10-114 and 14-10-115. Each of these statutes highlights what is considered income and what might otherwise be considered (if by default) as assets. Basically any property acquired during the marriage is going to be considered a marital asset absent a pre nuptial agreement. One notable exception not mentioned here is an inheritance. The assets received in an inheritance remain the sole and separate property of the person who received such assets in the event that such assets are not commingled with marital assets. Another notable exception would also be a home. If it is a marital home but it is not titled in both parties names, one party is going to have a substantially greater claim to keeping that asset, with the other party getting some kind of consideration if it were a marital asset. Last, and certainly not least, are gifts. A gift given the marriage to another party can be considered a marital asset, such as an engagement ring, but the court may determine otherwise.

Child Support Issues in consideration with visitation and decision making: A case that involves all the complexities in child support and has issues involving mental health and child protection require research into multiple disciplines and involve different aspects of law. Social Security Disability Payments received on behalf of a party in a child custody suit is not usually considered income. However, the court has and can consider imputing minimum wage. Social Security Disability Payments received on behalf of a minor child is not considered income to the parties but can be considered as contribution by the minor child and appears below on the child support worksheet. The problem is that the childs income disturbs the calculation much more than would income to the mother. In order to arrive a just conclusion all the elements included in the discussion require jurisprudence and a careful consideration of the equities in the case: the number of children involved, the living circumstances of the parties, after born children, medical necessities, life style choices and others. The considerations regarding maintenance are also important and the courts are not eager to dispose of the issue of spousal support without consideration to the amount of child support otherwise ordered. These are all weight considerations and cannot be decided without a balancing not only of the equities, but also with consideration to how the monies can or should be collected. The other factors are of course: how many overnights a party have, under what considerations. The costs of medical insurance in the absence of Medicaid. Extraordinary expenses and of course after school care depending upon the ages of the children. The interplay with all this and back child support give the courts the opportunity to work outside the normal legalities in reviewing back child support orders in deference to C.R.S. 14-10-122. Confused. It is confusing. And its cutting edge. And that's why competent representation is not a luxury, but a necessity. Add to the mix mental health issues and you have involvement from outside persons that make this situation harder to manage in the near term and the long term. The system does not always address all these issues in the order that they should be considered. And as such, the weight on the domestic court is indeed very heavy.

Drunk Driving and Department of Motor Vehicles Updates: Our firm has handled several drunk driving cases with hearings at the Department of Motor Vehicles which really cause us to think about the methods that police use in trying to enforce the law. In one case, the officer was served with a subpoena at the municipal offices where he works, but refused service. The person who accepts service on behalf of the officer refused on the basis that the officer would not appear at the hearing.  Our firm attempted private service on the officer and we were denied access to him and was told that they would not be amenable to our efforts. When we arrived at the hearing, the Department informed us that we could not serve any papers whatsoever unless they were pre approved by the Department. Of course, the officers presence then made no difference, as the Department did what they due in due course and revoked my clients license. What purpose does the Department of Motor Vehicles serve when it comes to suspending licenses? Is it necessary to have these hearings when the decision is perfunctory? The other cases, some of which were resolved successfully due to the helpful and sagely cooperation of the district attorneys office in the eighteenth judicial district, do not warrant further discussion—but are examples of how best to resolve most of these cases. Last not least, the firm has been involved in a case that is currently pending in which my client had requested a blood draw instead of a breath test. While the laws on implied consent require that you submit to one or the other, you, as the driver have a choice. Why a blood draw? Well, for practicable purposes you can do a retest on a blood sample, whereas with a breath sample, the officer retests and uses up the remaining sample, thus making it impossible to contradict the results (unless of course the equipment is fouled up). Below are some legal authority that you should consult if you are in a situation like this and need to help yourself or your attorney in the application of the law. This case is still pending, and we will give an update in another blog to come. Colorado's express consent law grants the driver the right to select one type of test from two alternatives. § 42-4-1301(7)(a)(II). The statute provides: Any person who drives any motor vehicle upon the streets and highways and elsewhere throughout this state shall be required to take and complete, and to cooperate in the taking and completing of, any test or tests of such person's breath or blood for the purpose of determining the alcoholic content of the person's blood or breath when so requested and directed by a law enforcement officer having probable cause to believe that the person was driving a motor vehicle in violation of subsection (1) or (2) of this section. Except as otherwise provided in this section, if a person who is twenty-one years of age or older requests that said test be a blood test, then the test shall be of his or her blood; but, if such person requests that a specimen of his or her blood not be drawn, then a specimen of such person's breath shall be obtained and tested ... except as provided in sub-subparagraph (B) of this subparagraph (II).§ 42-4-1301(7)(a)(II)(A). The plain language of this statute provides that if a person requests a blood test, "then the test shall be of his or her blood"; but if the driver requests that his blood not be drawn, then "a specimen of such person's breath shall be obtained and tested."§ 42-4-1301(7)(a)(II)(A) (emphasis added). There is a presumption that the word "shall" whenused in a statute is mandatory

Lessons from School Lawyers must attend school much like everyone else in order to maintain their credentials. 45 hours of continuing legal education with eight hours of ethics credits are required to maintain our licenses. The reporting period is for thirty six months. So having been licensed for 30 years plus, I am guessing that this the tenth cycle for me in order to continue actively representing clients. It is easy to be dismissive of these requirements, however, the class experience—when present live with other students—can be very beneficial.  And to my surprise, a class that was advertised for beginners in family law, was in fact, advanced. Fee Agreements: Our fee agreement has been fairly thorough in addressing a number of contingencies. However, based upon what was gathered, we have expanded our fee agreement in order to protect the client. Often times we will work on a flat fee, even in a divorce proceeding. In the event that the client or the attorney decide to terminate the agreement, then we have added a provision that protects the client in allowing for a determination of a reasonable fee based upon quantum meruit. A client will give the firm an advance payment, otherwise known as a retainer. Sometimes however the retainer is more than what is needed in order to complete the case, or the parties decide not to go forward, or the contract is terminated for other reasons. Under these circumstances the board of attorney regulation has determined that the appropriate fee for the attorney is based upon the theory of quantum meruit. (latin for the moral equivalency for the benefit conferred to the client). Analogous to this theory of quantum meruit is a contractor hired to build an edifice or pool or something concrete in nature. If the parties terminated their contract, bi laterally or unilaterally, the contractor is still entitled to be compensated for the benefit incurred to the other party. Rule 16.2 disclosure The parties are required to make all financial disclosures necessary in order to determine the relative wealth of each party, and to further determine the appropriate division of asset (or asset allocation) as it is commonly referred to. Any asset of any value is material.  Refusal to disclose all such information is grounds for punitive and monetary sanctions. Collaborative Law: Don’t feel that fighting is appropriate, but each party want to be represented by counsel: collaborative law may be the right approach. Maintenance:  The threshold for maintenance goes well beyond the guidelines as the parties must meet the initial threshold as to whether maintenance is needed in order for either party to maintain their respective lifestyles. The courts may or may not grant maintenance: clients may otherwise think that the guidelines will govern. They are guidelines that have to be further implemented and interpreted by the courts.        

Domestic Violence and Family Law intersect so often in my practice that it is little wonder why my practice vacillates between the two areas of law. Case studies always provide the best illustrations of what is happening in our legal landscape and the anecdotes are plentiful. Of course, as a practitioner, I need to always be careful to protect the identities of those persons who are owed attorney client privilege; and in some cases, I have pulled or modified blog posts in order to guard against any identifying information. Domestic Violence now occurs not only amongst heterosexual relationships, but also amongst same sex couples as well. That was not the case many years ago…but with the advent of laws recognizing same sex unions, married or otherwise, the incendiary domestic disputes have no lapped over into relationship of same sex partners. The remedies available as treatment options revolve around domestic abuse classes, as determined by probation. Judges and attorneys have no discretion as to what is ordered administratively, and this is not negotiable when arriving at a plea or disposition. Jury trials provide others a way to see if their case will be prosecuted, in that many so called victims recant their complaint. Their statements may still be used in court, whether they appear to testify, or whether they cooperate with the arresting officer or the district attorney. Once the police record witness statements, those statements then become part of the record. And of course, any statements or admissions made by the defendant can later be used to cross examine the defendant (if the defendant were to take the stand) or testified to by the police as they are admissions against interest, and thus are admissible as exceptions to the hearsay rule. Split pleas to misdemeanor and a deferred adjudication to a felony will not allow the defendant to have their records expunged later. A straight deferred plea is by far preferable, depending upon the accused criminal history and the facts of the particular case. If the defendant lives out of state, then transferring probation to another state has its own complications and involves the interstate compact between Colorado and other states. Whether the probation can be transferred is variable. The best way to handle this situation is for the defendant to reside in another state prior to sentencing. Last, immediate sentencing is best when entering a plea; otherwise you need a surety to bond and hold the case over. A complication that is usually easy to resolve, but sometimes presents special difficulties.  

Emergency Hearings Pursuant to Colorado Revised Statutes 14-10-129 require a showing that the danger to any child be imminent in preventing any further abuse. Recently, a client that had taken a plea in Denver County Court got a reduced plea for what was alleged to be a physical confrontation with a minor child that resulted in some scratches. The plea of wrong to minors, a municipal charge, while not to be taken lightly, was also conditioned on removing the protection order that otherwise prohibited the defendant from having contact with this children. In all the protection order was placed on the defendant for four days in total. The relationship between the parents weathered the storms, however, the other parent wanted the defendant to give up parenting time on a temporary basis and later requested that the parenting time be reduced permanently. The negotiations broke down and the non offending parent went back to court by getting a temporary protection order on behalf of herself and her children. When she appeared in court on the temporary protection order (which took two weeks of parenting time from my client) she requested a permanent protection order and in addition filed a motion for restricted parenting time. The request for a permanent protection order was dismissed by the court, primarily because the moving party did not have jurisdiction to bring the case. My client was not served in the appropriate county nor did the alleged incident happen in the same county, either. The motion for restricted parenting time was concurrently served on my client and unfortunately he was not able to see his children over the Thanksgiving holiday, nor were his parents able to visit with the minor children either. The hearing for restricted parenting time was take place within 14 days, and was in fact set for a week later. The hearing went well for my client, because the documentary evidence that the motion was brought for frivolous reasons was substantial. Ultimately, the Court determined that there was no showing of imminent danger to the children and that there was ample evidence that the parties could work together as set out by their parenting plan and that the moving party was motivated for reasons other than  the immediate needs of the childrens safety. Later, the moving party requested a modification of the parenting plan. My client was not motivated to give up any parenting plan as further requested, and as such the moving party dropped the case. My client feels that it was frivolous to request additional parenting time and even more egregious to request restricted parenting time. As such, he will seek be reimbursed for the attorney fees he needed in order to defend against these claims.