Legal Separation vs Divorce in Colorado: Key Differences, Similarities, and How to Decide

When a married couple or couple in a civil union chooses to end their relationship, a question that may come up is whether to pursue a legal separation or a divorce. While they are very similar, there are some key legal differences, so it’s important to understand both before proceeding.

SIMILARITIES

A legal separation and a divorce are nearly identical procedurally and result in orders covering the same legal issues, including those related to children (parenting time, decision-making, child support, etc.) and financials (property division, maintenance/spousal support, etc.). As traditional marriages and common law marriages are treated the same, a couple in either type of marriage can pursue a legal separation or a divorce. For a Colorado court to have jurisdiction over either case, one party must have lived in Colorado for at least 90 days, and if the couple has any joint minor children, the children must have lived in Colorado for at least six months (or since birth, if younger than six months old). Both cases have the same steps in court, including filing an initial petition, serving the other party if the petition is not co-signed, exchanging financial information, and attending a final hearing if agreements cannot be reached. Neither type of case is de facto quicker, easier, or more amicable than the other. Both vary in time and costs which depend on many factors, a main one being whether the couple is able to reach agreements or not.

DIFFERENCES

A divorce is the legal process to terminate a marriage, while a legal separation is the process to live separately from a spouse without the termination of the marriage. After a divorce, the parties part ways with separate finances and a custody arrangement for any children. They can also remarry at any time after receiving a divorce decree. For purposes of inheriting from an ex-spouse, unless there is a beneficiary designation or valid written agreement, divorced spouses lose rights to the estate of their deceased ex-spouse as well as any priority to act as their personal representative, agent, and the like.

After a legal separation, the parties also live completely separate lives; however, the parties remain legally married, so they cannot remarry unless they convert the legal separation into a divorce. In addition, absent a marital agreement to the contrary, couples who legally separate still keep their inheritance rights. This means that if one spouse passes away, the other has rights to the deceased spouse’s estate afforded to surviving spouses by law.

CHOOSING BETWEEN A LEGAL SEPARATION & DIVORCE

There are a few reasons why couples choose to legally separate rather than get divorced. A common reason is that divorces conflict with certain religious views and practices. A legal separation can allow the parties much of the same legal recourse of a divorce while upholding their religious values. Sometimes couples also choose a legal separation for financial reasons, such as to continue filing taxes together, to keep a certain health insurance policy, or to preserve inheritance rights. Finally, a legal separation can be beneficial for couples who would like to take some time to assess their relationship—and perhaps even contemplate reconciliation—before experiencing the finality of a divorce.

ONE SPOUSE WANTS A LEGAL SEPARATION BUT THE OTHER SPOUSE WANTS A DIVORCE

One spouse can always proceed with a divorce for any reason—it’s unlawful to force someone to stay legally married. On the other hand, one spouse cannot force the other to proceed with a legal separation if the other wants a divorce. In that scenario, if a spouse files for a legal separation, the other has two options. They can either file a motion to modify the petition for legal separation to a divorce (see JDF form 1107*), or they can wait to receive the legal separation decree, then file a motion to convert the decree of legal separation to a decree of divorce (see JDF form 1321*). However, conversion can only occur six months after receiving the decree of legal separation.

WHAT’S RIGHT FOR YOU?

If you’re unsure which track to choose, given the legal implications, it’s highly recommended that you seek professional counsel who can assess your particular situation—and competently and tenaciously represent you in either type of case. We understand that the end of a relationship can feel overwhelmingly difficult. If you’re in this situation and you’re seeking guidance and/or representation, please contact us today to schedule a consultation with one of our experienced family law attorneys.

*Please Note: While it’s often ideal to retain the services of an attorney, it’s also important to know that representation is not required, and anyone can proceed with domestic relations cases without legal counsel. The courts supply many helpful resources and JDF forms for public use. All necessary forms can be downloaded from the Colorado Judicial Branch website under Self-Help and Forms. The court’s general guide for how to file for a divorce or legal separation and list of other required forms can be found on JDF 1010.

Understanding Adult Guardianships and Conservatorships in Colorado: A Guide for Families

Do you have an adult loved one who has a neurogenerative disease, experienced a sudden brain injury, or has shown a noticeable decline in their ability to take care of themselves or their finances? Do you have a child with a cognitive disability who will be turning 18 in the near future? Do you have worries that someone, even another family member, may be taking advantage of an elderly loved one without their knowledge? If the answer to any of the above is yes, a protective case (called a guardianship or a conservatorship or both) may be an avenue to consider sooner rather than later.

Media coverage of Hollywood adult guardianships and conservatorships (Britney Spears, Amanda Bynes, and Brian Wilson to name a few) has resulted in widespread educational discourse about how protective cases work—unfortunately, it has also led to the mass spread of disinformation. The goal of this article is to serve as an accurate, in-depth guide for protective cases in Colorado.

TWO TYPES OF PROTECTIVE CASES: WHAT IS A GUARDIANSHIP VS. A CONSERVATORSHIP?

The purpose of both types of protective cases is to ensure someone qualified is able to make decisions on behalf of a protected person. A protected person is someone who the court determines cannot make decisions for themselves, and this may be because they are an incapacitated adult, which will be the main focus of this article, or because they are a minor. A guardian is in charge of decisions related to the protected person’s medical/health care, residence, and overall wellbeing. A conservator is in charge of decisions related to the protected person’s real and personal property, income, and any other financial or business interests. Each type has slightly different legal standards, but it’s common for both to occur in the same case.

WHAT ARE THE LEGAL STANDARDS?

To appoint a guardian in Colorado, the court must find by clear and convincing evidence that:

(1) The respondent is incapacitated, meaning:

a) They are unable to effectively receive and evaluate information or make or communicate decisions, even with the use of appropriate and reasonably available technological assistance; and

b) This incapacity impairs their ability to meet essential requirements for physical health, safety, or self-care;

(2) The appointment is necessary to provide continuing care and supervision of the respondent; and

(3) No less restrictive alternative is available and appropriate.

To appoint a conservator in Colorado,

(1) the court must find by clear and convincing evidence that the individual is unable to manage property or business affairs because of:

a) Incapacity, meaning they are unable to receive and evaluate information or make or communicate decisions, even with appropriate and reasonably available technological assistance,

b) Detention/incarceration,

c) Disappearance, or

d) Inability to return to the US; and

(2) the court must find by a preponderance of the evidence, either:

a) the individual has property that will be wasted or dissipated unless management is provided, or

b) money is needed for the support, care, education, health, or welfare of the individual or someone the individual is obligated to support.

These cases require a fact-intensive analysis, and every case is different. However, some common patterns that show a person may need a guardianship include when a person cannot properly feed themselves, practice proper hygiene, take prescribed medications, attend or remember scheduled doctor’s appointments, remember regular, daily things or people, or take care of themselves in general. For a conservatorship, common fact patterns include when a person repeatedly fails to remember to pay bills, lets the electricity, water, or other utilities turn off in their home without following up, falls victim to scams or family members/friends taking advantage of them, or fails to take care of their property or funds in general.

WHAT IS THE GENERAL COURT PROCESS?

To be appointed as a guardian or conservator or both, you must be at least 21 years old and file a petition and other required paperwork* with the court in the county where the person to be protected (also called the “respondent”) resides. The court will then set a hearing date around 60 days out from the date of filing, which may be in person or virtual depending on the county. No later than 14 days before the hearing, all of the paperwork, including a notice of the hearing, must be personally served on the respondent. It’s best to coordinate service to occur when the respondent is in an environment where they feel safe with a process server who has experience and will make them feel comfortable, if possible. The paperwork must also be served by mail to any interested persons so they will have the opportunity to object to the petition, if they choose. Interested persons may include the respondent’s spouse, adult children, parents, caretakers, legal representatives, creditors, and anyone else who may have an interest in the proceeding. The court will appoint a Court Visitor who will interview the respondent, the petitioner, other people in the respondent’s close circle, and care providers (if the respondent lives in a care facility) to create a report to aid in deciding whether the ward needs a guardianship and/or a conservatorship. The respondent must attend the hearing unless the court determines there is good cause for their absence. If the case is uncontested, the petitioner will simply make their case to the court during the hearing. Depending on whether there are objections, the court may appoint an attorney or a guardian-ad-litem to represent the respondent’s interests.

WHO HAS PRIORITY FOR APPOINTMENT?

A person above the age of 21 with concerns about the respondent’s wellbeing and/or finances may be appointed as guardian, conservator, or both. While it’s often helpful to live nearby, there is no requirement that such person live in Colorado.

The order of priority for a guardian is: (1) a person nominated by the respondent in a valid durable power of attorney or other writing; (2) an agent under medical power of attorney; (3) the spouse or partner in a civil union of the respondent; (4) an adult child of the respondent; (5) a parent of the respondent; (6) an adult with whom the respondent has lived for more than six months before the petition is filed; and (7) any other person the court deems appropriate, including a private/professional guardian.

The order of priority for a conservator is: (1) a person nominated by the respondent in a valid power of attorney or other writing; (2) an agent under financial power of attorney; (3) the spouse or partner in a civil union of the respondent; (4) an adult child of the respondent; (5) a parent of the respondent; and (6) any other person the court deems appropriate, including a private/professional conservator, public fiduciary, or trust company.

If a case is already open and an interested person has concerns about a guardian’s and/or conservator’s performance on behalf of a loved one, and the evidence is substantial enough, an interested person may have the option to petition to remove them and appoint someone else instead (including themselves if they are qualified).

CAN MORE THAN ONE PERSON BE APPOINTED?

In some situations, such as two parents looking after an incapacitated adult child, it’s a good idea to have two co-guardians and/or co-conservators. In those situations, the court documents should be drafted to ensure that both parties are able to act on their own without the need for both to sign off on every decision. Then, if the child needs to go to a medical appointment but one parent can’t go, the other can go alone and make sure the child gets medical attention without issue. In other situations, such as two adult children who don’t get along but want to be part of looking after their parent, it may not be a great idea to have both serve as co-guardians or co-conservators, depending on the dynamics and facts involved. The court’s main concern is what is best for the respondent, and two petitioners who don’t work well together isn’t necessarily the best outcome. This runs the risk of them hitting a standstill if they disagree about a particular decision and have to get a court order in order to take action—spending time litigating without being able to act can put the protected person’s wellness or finances at risk. Instead, if there are competing petitions, the court may determine something else is best, such as: one to serve as both roles; one to serve as guardian and one to serve as conservator; or, if they’re co-guardians/co-conservators, then one to have the final say in case of disagreements. Again, the court documents must be drafted clearly and accurately so that various entities can easily understand the scope of authority.

WHAT DOES THE COURT REQUIRE AFTER APPOINTMENT?

Once appointed as guardian and/or conservator, the court will set deadlines to complete and file an initial guardian’s report and/or an initial conservator’s financial plan with inventory. A report for both types of cases will be due every year after that, typically on the respondent’s birthday.

WHAT ARE THE DUTIES OF A GUARDIAN AND A CONSERVATOR?

Beyond the reports for the court, guardians and conservators have many ongoing legal duties (and some limitations), and it’s important to be familiar and compliant with them. For guardians, the duties include, but are not limited to, arranging for the protected person’s medical needs, housing, food, clothing, hygiene, personal care items, housekeeping, transportation, spiritual needs, recreation, and any hired professionals for the same. However, there are some things a guardian does not have authority to consent to against the protected person’s will. Special procedures are required to obtain hospital or institutional care for mental illness, treatment from an agency for developmental disabilities, or treatment for substance abuse. A guardian also cannot move the respondent out of Colorado without a court order.

For conservators, the duties include, but are not limited to, locating and protecting all of the respondent’s assets, separating all assets from their own, managing and investing the respondent’s assets appropriately and without major risk, paying bills, ensuring there is insurance coverage where appropriate, ensuring taxes are current, maintaining a clean and complete written record of all transactions, and seeking professional advice and services when needed. It’s very important to only ever sign off on financial documents in the conservatorship capacity, rather than personally.

It’s also up to the guardian/conservator to stay current and competent about their legal duties and limitations. At the same time, a guardian/conservator should always attempt to include the respondent’s input in decisions, if possible.

SHOULD I/HOW DO I TALK TO MY LOVED ONE WHO MAY NEED PROTECTION ABOUT ALL OF THIS?

We often advise the petitioner to have a conversation with the respondent about the case and give them a warning, particularly before they are served with court paperwork, if possible and safe under the circumstances. Talking about this can be hard on both parties, especially depending on the respondent and their level of cognition and understanding. Sometimes respondents have a condition, such as very late-stage dementia, and can’t really understand what is happening (or don’t really care). Others understand that they need help and even want their family to step into these roles for them. In other situations, this process can be very tough on the respondent as they may feel confused, betrayed, scared, and a loss of autonomy. It can in turn be difficult for the petitioner as no one wants to make their loved one feel this way.

Regardless, it’s very important to recognize and empathize with the respondent’s feelings while remembering the end goal of ensuring their personal and financial safety. It’s best to be kind, patient, and honest, explaining the concerns to them and why the process feels necessary—the purpose is not to control, scare, or hurt them, but rather to help, protect, and express love to them. At the same time, it’s also important not to pressure or unduly influence them into accepting the appointment of a guardian and/or conservator. If they wish to object to it, they have the legal right to do so. The court will ensure they have representation (or the opportunity to have representation) if needed and will make the ultimate decision.

WHAT IF MY LOVED ONE’S CAPACITY IS WORSENING BUT NOT QUITE AT A POINT TO MEET THE LEGAL STANDARDS?

If the respondent’s level of capacity is in a gray area, the court may appoint a guardian and/or conservator in a limited capacity, personalized to the particular issues. This is often to ensure that the respondent still has responsibilities and feels in charge, but also that the petitioner can intervene and assist in particular situations of need. To provide some examples: a guardian may attend doctor appointments and assist with medical decisions but cannot make decisions about the respondent’s residence; a conservator may monitor and limit the respondent’s spending but cannot pay bills on the respondent’s behalf; the guardian/conservator must run every single decision by the respondent but may have the final say if there’s a genuine disagreement. If things worsen over time, a new petition can be filed for additional authority.

For anyone in general, but particularly for folks with a family history of cognitive disorders, it’s wise to consider speaking to an estate planning attorney about medical and general durable powers of attorney to nominate an agent(s) to be able to assist with health and financial decisions, respectively. A main goal of these documents, beyond ensuring an agent can step in to help if you become incapacitated, is to avoid the need for a guardianship or conservatorship altogether. If drafted properly, they function very similarly, meaning the agent can take a copy to assist with doctor’s appointments, banking, paying bills, etc. without the need for court involvement or annual reporting. The person signing a power of attorney and nominating an agent(s) must have capacity, so it’s important to try to complete these earlier rather than later, especially if there is fear of future decline in cognition.

I HAVE A MINOR CHILD WITH A DISABILITY AND EXPECT THEY WILL BE INCAPACITATED THROUGH ADULTHOOD – WHAT STEPS DO I TAKE?

Once a person turns 18, they are considered a legal adult by most entities in American society, including financial institutions, medical providers, and government agencies like the Social Security Administration. At that point, in order to assist them with things like medical treatment or government benefits, such entities will more than likely require a guardianship and/or conservatorship to have authority to make decisions on their behalf. Depending on the situation, the parent or legal custodian of the respondent can petition about two months before the respondent’s 18th birthday and request a court date for the birthday or shortly after that. Alternatively, if the 18th birthday is coming up quickly and there is a serious need for a guardianship and/or conservatorship, there is also an expedited version of the process. The legal standards for this are heightened, but if the situation is an emergency, the court may appoint an emergency guardian and/or special conservator to serve until the permanent one is ordered on the regular timeline.

It's also a good idea for parents to meet with an estate planning attorney and ensure they have official, written guardian and conservator nominations for any minor children as well as express, broad authority for their nominated fiduciaries to be able to make lawful gifts to minors or incapacitated beneficiaries in a way that’s in their best interests.

CONCLUSION

Adult protective cases can feel emotionally taxing and overwhelming for everyone involved. At Gant Law, we understand that every case has its own unique needs and we pride ourselves in doing everything we can to ensure these cases are resolved and tailored to the best interests of the protected person. If you’re worried about a loved one’s wellbeing, you feel like someone is pressuring or taking advantage of you or your loved one, or you’re interested in taking estate planning measures, please schedule a consultation with us and one of our attorneys will be happy to provide you with personalized advice.

*Please Note: While it’s often ideal to retain the services of an attorney, it’s also important to know that representation is not required, and anyone can proceed with protective cases without legal counsel. The courts supply many helpful resources and JDF forms for public use. All necessary forms can be downloaded from the Colorado Judicial Branch website under Self-Help and Forms. The court’s instructions and list of forms for appointment of a guardian and conservator for an adult can be found on JDF 840 and JDF 875, respectively.

How Much Does a Lawyer Cost in Colorado? A Transparent Look at Attorney Pricing

How Law Firm Pricing Really Works

In the 2025 legislative session, the General Assembly passed (and the Governor signed) HB 25-1090 Protections Against Deceptive Pricing Practices, which is set to take effect January 1, 2026. The goal of this legislation is to dispense with deceptive pricing practices in Colorado. At Gant Law, we fully support pricing transparency and wanted to take this opportunity to provide some insight into attorney pricing for those seeking legal services.

When hiring an attorney, one of the first and most common questions is: How does pricing work? For clients unfamiliar with legal services, the answer can feel opaque or even intimidating. At Gant Law, we believe transparency and clarity are essential. So, here’s a straightforward explanation of how hourly billing works—and what it actually means when you receive an invoice from a law firm.

What You're Really Paying For

Unlike purchasing a product with a price tag, legal services are not about materials or parts. What you’re paying for is a professional’s time, expertise, and judgment. An attorney’s service is their knowledge and experience—the ability to interpret the law, assess your case, and apply strategy to your unique situation.

The most common way to value that knowledge is by tracking the time spent delivering it. That’s why most Northern Colorado law firms, especially in complex areas like family law and probate, use hourly-rate pricing.

Why Not a Flat Fee?

You may have heard of attorneys offering flat fees, and in some practice areas—like simple estate plans or uncontested matters—that works well. But for areas like litigation, guardianships, contested divorce, or estate administration, there are simply too many variables. Every case is different. Every opposing party behaves differently. Every court has its own nuances and timelines.

In these types of cases, guessing at a flat fee could either overcharge the client or leave the attorney unable to cover the time truly required. Hourly billing allows for flexibility and fairness based on the actual complexity and duration of your case.

The Role of a Retainer

Clients are often confused about the term "retainer.” It’s important to understand that a retainer is not the total price of your case. Instead, it’s a form of prepayment—think of it like a down payment or security deposit.

These funds are deposited into a special trust account and remain your property until the attorney earns them by working on your matter. Some firms use the funds right away to pay your first few invoice (or invoices). Others hold onto the retainer for the life of your case and return it at the end if unused. Either way, anything not earned goes back to you.

In Colorado, trust accounts are regulated and monitored. Interest earned from these accounts (if any) is sent to the Colorado Lawyer Trust Account Foundation, which supports civil legal aid services for those who cannot afford it.

How Time Is Tracked (And Why It Matters)

Attorneys typically bill in time increments. In Colorado, courts have said that billing in up to 12-minute increments (or tenths of an hour) is legally permissible. But here’s the problem: if a task takes just one or two minutes, you could still be billed for the full 12.

At Gant Law, we don’t think that’s fair. We bill in 3-minute increments (or twelfths of an hour), which more closely aligns with the actual time tasks require. That means our clients are paying for what’s truly necessary—no more, no less.

Hourly Rates: What Do They Reflect?

Hourly rates in Northern Colorado for family law and probate matters often range from $225 to $450, depending on the attorney’s experience, knowledge, skill, and the complexity of the case. But here’s an important truth: a higher hourly rate doesn’t always mean a higher overall cost.

Why? Because experience brings efficiency. A seasoned attorney may complete a complex task in half the time it takes someone with less experience. That’s why the total cost of a matter is often more about efficiency and decision-making than just raw hourly numbers.

At Gant Law, we strive to assign the right task to the right professional. If a paralegal can do the job just as well, they will—and you’ll be charged the paralegal rate. If an attorney does a paralegal task for convenience, we’ll still bill you at the paralegal rate. If we do work that doesn’t meet our internal quality or timing standards, we may even reduce the rate or charge nothing at all. When two attorneys collaborate, and the full benefit of both isn't necessary, you'll also see that time billed at half rate.

What You're Billed For—and Why

If a task was required for your case, it is generally billable. That includes:

• Reviewing records;

• Drafting pleadings;

• Analyzing facts and law;

• Strategizing or preparing for hearings;

• Communicating with you, the opposing party/attorney, witnesses, the court, etc.

It may surprise some clients to see time billed for reading emails or making quick phone calls. But that’s because even those actions require legal attention. Our job is to think critically about everything that enters your case—and that includes correspondence. Knowing the full facts on your case is the only way analysis can be comprehensive.

“We believe legal fees should never feel like a surprise.”

— Gant Law

How to Keep Legal Costs Down

This is a question we’re always happy to answer. The number one tip: respond to your attorney’s requests accurately and on time.

It may sound simple, but it’s key. Nothing wastes more client money than delays caused by incomplete information. If your attorney asks for records, inventories, forms, or documentation, turn them in quickly, fully, and in the format requested.

Also, consolidate your questions when you can. Every email or call you send requires a response—and each response is time. We’re ethically required to respond, and we want to be helpful. But if you send 10 separate messages instead of one well-thought-out email, your bill will reflect that.

Transparency and Communication

Attorneys in Colorado are required to provide detailed billing records. At Gant Law, we send regular invoices (usually monthly) that show exactly how your matter is progressing. Every three-minute increment is accounted for. We aim to include enough detail so you know what was done, without exposing sensitive information in case the court ever needs to review the invoices.

We believe legal fees should never feel like a surprise. That’s why we’re transparent about both our pricing and your case’s direction. We’ll advise you about what’s coming up, the options you have, and what we can do to help manage expenses without compromising quality.

Final Thoughts

We know legal representation can feel expensive. Good legal work can also prevent costly mistakes, resolve conflict more efficiently, and bring peace of mind in difficult times. At Gant Law, we take seriously the responsibility of providing service that is both excellent and fair.

If you still have questions about how hourly billing works, or how we approach fees in your specific type of case, we’d be happy to talk with you. We don’t want you walking into a legal matter feeling unsure or confused—we want you feeling confident, informed, and empowered.

Who Really Owns the House? Understanding Marital Property vs. Title in Colorado

When it comes to dividing property in a divorce or planning an estate in Northern Colorado, one of the most common misconceptions we hear is: “But the house is in my name—so it’s mine, right?” Not so fast.

Under Colorado law, especially here in Greeley and throughout Weld and Larimer Counties, how an asset is titled does not determine whether it is considered marital property. Instead, the key question is: When and how was the property acquired?

What Counts as Marital Property?

In Colorado, any property acquired during the marriage is typically considered marital property, regardless of whose name is on the deed, account, or title. That means even if only one spouse’s name appears on the house deed or bank account, it could still be subject to division in a divorce.

What Counts as Separate Property?

By contrast, certain assets are considered separate property and are not subject to division, including:

• Assets owned before the marriage (but watch out: growth in value is still marital)

• Inheritances received by one spouse

• Gifts made to one spouse individually

However, this is where things get tricky: if separate property is commingled with marital property,or retitled jointly, it can lose its separate status.

Commingling and “Gifting” to the Marriage

Let’s say one spouse had a house before marriage, but after marrying, adds the other spouse to thedeed or uses joint funds to pay the mortgage. That’s called commingling, and it may convert all orpart of that house into marital property.

Even more clearly, if the property is retitled into joint names during the marriage, Colorado courtsoften view that as a gift to the marriage, unless there’s a valid marital agreement that saysotherwise.

Why This Matters for Divorce and Estate Planning in Greeley

Whether you’re planning for the future with a trust or going through a divorce, understanding how Colorado defines marital versus separate property is essential. It’s especially important in family businesses, farming operations, or cases involving inherited land or assets, which are common in Weld County and the Greeley area.

Need help protecting your separate property or planning for a fair distribution? At Gant Law, LLC, we guide individuals and families in Greeley and across Northern Colorado through estate planning, prenuptial agreements, and property division during divorce. Contact us today to schedule a consultation.

What is a Common Law Marriage in Colorado?

Colorado is one of the few states that recognizes valid common law marriages. For couples who haven’t sought a ceremonial marriage, it is critical to plan ahead by understanding the complexities and implications of a common law marriage—or a lack of the same.

Common Law Marriage & Legal Framework

A common law marriage is an alternative to a ceremonial marriage, which is the more widely known version with a ceremony and license. Legally speaking, there is no difference between the two, and a couple in a common law marriage has the same rights and duties as any other married couple, so it is very important for couples to start by considering whether or not they are in a common law marriage.

Statutory: Pursuant to C.R.S. § 14-2-109.5, a couple may enter into a common law marriage so long as each party is at least 18 years old and the marriage is not prohibited by C.R.S. § 14-2-110 (which prohibits bigamy and incest). That is all the statutory authority provided—whether a valid common law marriage actually exists must be analyzed under the relevant case law.

Factual Analysis: A common misconception is that a common law marriage exists based on the amount of time a couple has lived together. While co-habitation is one factor the court considers when determining whether a common law marriage is valid or not, the actual inquiry is whether there was a mutual agreement between the parties to enter into a marital relationship, followed by a mutual and open assumption of the marital relationship. From a court perspective, intending to enter into a marriage is completely different from a financial, platonic, or even romantic relationship. The person claiming the existence of a common law marriage has to establish it by clear and convincing evidence, and it is a fact-intensive, high legal burden. The most recent leading case on this issue (In re Marriage of Hogsett, 478 P.3d 713 (Colo. 2021)) lays out a non-exhaustive list of factors the court considers:

1. Reputation in the community as spouses

2. Joint tax returns

3. Joint ownership of real estate

4. Joint financial accounts (bank accounts, investment accounts, etc.)

5. Shared financial obligations (mortgages, leases, bills, etc.)

6. Shared surname for children

7. Health insurance

8. Beneficiary designations

9. Mention of other person in estate planning documents (e.g., named as husband, wife, or spouse vs. girlfriend, boyfriend, partner, friend, etc.)

10. What they call each other publicly, in front of family, friends, and peers, on social media, etc.

11. Ceremonies

12. Wedding rings

13. Cohabitation

Official Documents Required: Despite the long, non-exhaustive list of factors the court may consider, it is important to note that courts currently give far more weight to a couple’s official documents than other factors. Such documents include, first and foremost, how the couple files taxes, whether they are listed as spouses for health insurance purposes, and whether/how they list each other in estate planning documents such as wills, trusts, powers of attorney, and the like. Without evidence of these, even if all other factors are in favor of the existence of a common law marriage, the court is highly likely to find there is no marriage.

For same-sex couples, the inquiry may be different depending on the timing of events. Same-sex marriages were prohibited until the United States Supreme Court decision in Obergefell found this ban unconstitutional and allowed same-sex couples to marry in 2015. Because of the ban, same-sex couples could not list each other on official documents prior to that time, but the other factors and conduct prior to 2015 will still be considered when determining whether a common law marriage exists and when the marriage began.

Legal Implications

For couples who either intend or do not intend to be in a common marriage, there are important legal implications to consider ahead of time.

Legal Separations and Divorces: If a couple has entered into a common law marriage and wants to end their relationship, they must go through the formal legal separation or divorce process to equitably divide marital property and determine support obligations, if any. It is easy to imagine why this may lead to contentious litigation. If the court finds there was no marriage, there is no required division of marital property and no maintenance order, which is especially important if the couple decided in the past that one partner would work to earn an income and the other would stay home to maintain the household. Issues also arise when couples dispute the length of the common law marriage, which is relevant for maintenance (alimony) purposes as well as designating property as marital or separate. Importantly, if a couple splits up without getting a divorce and one of them remarries, the second marriage may be found valid/void as bigamy if it can be shown that the first relationship was a common law marriage.

Probate and Estates: If a couple is married and one of them passes away, the other has certain rights with regard to the estate, and this applies to common law spouses the same as other spouses. For example, if a person passes away without a will, the partner may have priority for appointment as personal representative and may have certain rights to the estate as a surviving spouse. If the person who passed did not make it clear whether they intended to enter a marriage and/or whether they intended to leave their all or a portion of their estate to their partner, this can lead to disputes between the surviving partner and other family members during the probate process. It’s very important to create an estate plan with intentions clearly laid out.

Planning Ahead

If you have questions related to common law marriage such as getting divorced, probate rights, estate planning, or whether you’re even in one, it’s highly recommended that you consult with legal counsel. At Gant Law, our attorneys have experience with each of these areas of law. Give us a call or contact us via email to schedule a consultation and we’ll be happy to discuss your particular situation and next steps needed to reach your goals.

How To Transfer a Decedent’s Vehicle Title in Colorado

When the owner of a vehicle passes away, the title to that vehicle will need to be transferred. How to go about transferring title depends on several factors, including whether probate is open or needs to be opened, whether the vehicle was left to someone in a will, and whether the vehicle was owned by more than one person.

Vehicles Part of Non-Probate Estates

If the estate doesn’t require probate, whoever is administering the estate can fill out an Affidavit for Collection of Personal Property (JDF 999) or a DMV Small Estate Affidavit (Form DR 2712) and take it to the DMV along with the title and a copy of the death certificate to transfer title to the new owner. See our article, Probate: The Basics, for more information about determining whether opening probate is required.

Vehicles Part of Probate Estates

If the estate will require probate and the vehicle was not placed in a trust, the process is a bit more complicated. If the vehicle is included in a will, the personal representative can wait until the close of probate to transfer title to the named beneficiary. If the vehicle hasn’t been designated to someone in a will, the personal representative will need to comply with the terms of the will or with the rules of intestate succession. This may mean selling the vehicle and keeping the proceeds safe in an estate bank account until the time comes to distribute the estate. This may also mean allowing an heir to keep the vehicle outright, depending on the heirs involved, the terms of a will, and the overall financial circumstances of the estate. It can be tricky for personal representatives to decide what to do, so seeking legal assistance is highly suggested.

With probate estates, in order to transfer title of a decedent’s vehicle, the DMV will typically require (1) the original title, (2) a copy of the death certificate, and (3) certain court documents, including the Letters Testamentary or Letters of Administration. However, it is best to contact the local DMV ahead of time to confirm what documentation is required to complete the title transfer as requirements can vary from DMV to DMV.

Vehicles with Multiple Owners

Finally, if a vehicle is titled to more than one owner in joint tenancy, the surviving owner will own the vehicle by operation of law. “Joint tenancy” essentially means that when there are multiple owners, the last survivor of the owners gets to keep it outright, rather than it going into the estate. Thus, to transfer title when at least one owner is still living, the signatures of all living owners will be necessary.

Estate Planning Around Vehicles

Looking to simplify the estate process for your loved ones and avoid probate? Many folks don’t know that Colorado has a tool to do so for vehicles specifically. A vehicle owner can use Department of Revenue Form DR 2009 to include with their estate planning documents, which allows the owner to designate a beneficiary to take ownership of the vehicle upon their passing. Upon the owner’s death, the beneficiary can simply present this form with a death certificate and the requisite Application for Title Form 2395 to the DMV to transfer title to themselves. It is important to note that this form will trump anything stated in the owner’s Will, so if an owner wants to make any changes, they should ensure all of their estate planning documents are kept up to date and in line with their wishes. The owner can revoke the form by destroying it, selling the vehicle, or filling out a new form. Every situation is different, and this form may not be the best option for every person and estate, so speaking to an experienced estate planning attorney is recommended if there are any questions as to its use.

Knowing what to do with a deceased loved one’s property can be confusing and difficult to navigate. If you’re in need of assistance with transferring titles, the Colorado probate process in general, or estate planning options, please reach out to Gant Law and we’ll be happy to schedule a consultation for you.

To Probate or Not to Probate: Mobile Homes

When determining how to proceed with an estate, an initial question is often whether to open probate or not. Probate is not required for any assets the decedent placed into a trust or any assets with assigned beneficiary designations. Probate is always required when the decedent owned real estate or when the decedent owned assets worth over $80,000 (as of 2023). So how does one proceed when the decedent owned and lived in a mobile home?

If the decent owned land on which the mobile home sits, the land is considered real estate which will require probate. But many folks own mobile homes that sit atop rental plots, and they do not own the land, so the analysis turns on whether probate is required for the mobile home itself. In Colorado, a mobile home is by default considered personal property rather than real estate. However, if the mobile home is permanently affixed to a location and a certificate of permanent location has been filed with the county, it is then considered real estate pursuant to C.R.S. § 38-29-202 and probate will be required in order to transfer ownership of the mobile home.

Thus, if the mobile home is not permanently affixed and a certificate has not been filed, it will be considered personal property. In that case, opening probate is unnecessary so long as the total value of the mobile home and the decedent’s other assets does not exceed $80,000. Instead, use of a small estate affidavit and/or DMV affidavit  will suffice.

Another consideration is whether the decedent added another person to the title of the mobile home as a joint tenant with the right of survivorship (sometimes shortened to “JTWROS” on the title). If so, once the decedent passes, ownership simply passes to the other listed person—outside of probate.

At Gant Law, we understand every case is different and these procedures can feel complicated and overwhelming, particularly while grieving the loss of a loved one. Give us a call today and our attorneys will be ready to provide you with personalized guidance based on your situation.

Handwritten Wills in Colorado

Colorado law requires that a person who finds a will must lodge the will with the probate court in the county in which the testator resided at death within 10 days after the testator’s death or, if found after those 10 days, as soon as the person has found the will. See C.R.S. § 15-11-516. After someone passes away, loved ones often begin cleaning out their homes, and it is not uncommon to find a handwritten document that seems to be a will. Because having a valid will determines whether it must be lodged with the court and changes the course of the probate process, it is very important to be able to determine whether a handwritten document of this kind is considered a valid will (called a “holographic will”) or not.

A valid will must be (1) written, (2) signed by the “testator” (the subject of the will), and (3) either notarized or signed by two witnesses. However, a handwritten document that appears to serve as a will may also be considered a valid holographic will in Colorado so long as it meets certain requirements under C.R.S. § 15-11-502(2).

A valid holographic will, whether or not witnessed, requires that the signature and material portions of the document are in the testator’s handwriting. The law makes a small exception for testators who were physically unable to write so the will may contain portions that are not in the testator’s own writing; however, generally, the document must be substantially written by the testator. These requirements apply to an amendment or revision (a “codicil”) to an existing will as well.

Whether the testator intended to create a will is the first priority, so courts take caution when determining if a holographic will is valid or not and may heavily interrogate the validity of a purported holographic will in order to make sure no one has falsified it for personal gain. Intent that the document constitutes the testator’s will can be established by use of extrinsic evidence, including portions of the document that are not in the testator’s handwriting. But even with use of extrinsic evidence, folks who have handwritten their wills without help from an attorney may use unclear language, which can make it hard to know what to do with their estate.

If you have found a handwritten document that appears to lay out the wishes of a deceased love one, don’t hesitate to reach out to an experienced probate attorney for help determining whether it may constitute a valid holographic will. Holographic wills carry potential to provoke disputes between family members over the estate, particularly when family members have differing understandings of the testator’s intent, and they can change the entire scope of the probate process. Thus, it’s important to know all relevant factors to consider before taking action.

Probate: The Basics

What is Probate?

In general terms, the goal of the probate process is to take inventory of and manage a deceased person’s (a “decedent’s”) assets and debts before distributing remaining assets to named beneficiaries and/or heirs. The person in charge of administering an estate is called a Personal Representative (“PR”), which is Colorado’s term for the Executor of an estate. In Colorado, the process is fairly streamlined, but it takes some time—probate is typically open for six months to a year though it may take longer—and many steps must take place in order to properly administer an estate.

When is Probate Necessary?

When a person passes away, the first thing to determine is whether to go through the small estate process or to open probate. If the decedent passed away owning either (1) real estate or (2) assets worth over $80,000 (as of 2023), then opening probate is required by law to administer the estate. If neither of these are the case, then use of a small estate affidavit (or DMV affidavit for vehicles) is all that is needed.

Who Can Apply to Become the Personal Representative?

Colorado law lays out the order of priority for courts to appoint a PR. For purposes of this section, a “devisee” is a person designated in a will to receive real or personal property. The following is the order of priority:

·       The person nominated or given priority to be PR in the decedent’s will;

·       The surviving spouse of the decedent who is a devisee of the decedent;

·       The surviving party to a civil union who is a devisee of the decedent;

·       A person given priority to be a PR in a designated beneficiary agreement;

·       Other devisees of the decedent;

·       The surviving spouse of the decedent;

·       The surviving party to a civil union;

·       Other heirs of the decedent;

·       Forty-five days after the death of the decedent, any creditor.

Though the court must consider persons with priority for appointment, it can still pick a person with lower or no priority. In cases where there is no will, the court can appoint a person who is acceptable to the heirs and devisees whose interests in the estate value more than half the total value of the estate. Additionally, if all else fails, courts can appoint any suitable person.

Testate vs. Intestate

If the decedent died owning real estate or assets over $80,000 and opening probate is necessary, the next determination is whether to open probate as testate or intestate. Testate simply means the decedent left behind a will and intestate means there is no will. Prior to opening probate, an applicant for PR must diligently search for the decedent’s will. If there is indeed a will, the applicant must lodge the will in the county where the decedent passed and follow the will’s terms and distribute assets according to the decedent’s wishes. If no will can be found, then the Colorado rules of intestate succession govern how to distribute a decedent’s assets. These rules can apply in tricky ways depending on each decedent’s familial structure, so advice from an experienced probate attorney may be vital for unique or complicated situations.

Formal vs. Informal

The next determination is to decide whether to open probate formally or informally, and it is important to understand the differences.

Formal probate requires more involvement from the court and is the best track for complex estates, situations involving disputes between family members and potential litigation, and/or unclear heirship determinations. Court oversight is needed in many of these scenarios, so the PR often must ask the court for permission before making certain decisions such as determining the validity of a will, selling estate assets, paying creditors, and making final distributions. Folks petitioning to open formal probate also must provide notice of their petition to known heirs ahead of time to allow for objections and a hearing, if needed.

Informal probate requires very little court oversight and is the best track for simple estates, collaborative families, and straightforward heirship determinations. Applicants for informal probate need only apply with the appropriate forms and give notice to heirs once appointed as PR. For many families, the analysis for picking formal or informal doesn’t feel so straightforward, so speaking to an experienced probate attorney is advised in more complicated situations.

What are the Duties of a Personal Representative?

PRs have an important societal role and along with it, certain duties as the fiduciary of an estate, including:

·       Duty to administer the estate with care and in accordance with Colorado law

·       Duty of impartiality: Treating all persons with an interest in the estate the same, without any bias for or against any of them

·       Duty of loyalty: Not favoring the PR’s own interest above those of the estate or interested persons

Failing to properly fulfill these duties can have negative repercussions and open the PR up to personal liability and litigation, so it’s important for a PR to fully understand and be willing to accept these duties prior to appointment.

What are the Responsibilities of a Personal Representative?

In following the above general duties, PRs must complete certain requirements, including:

·       Collecting and protecting assets

·       Keeping a clean, accurate record of assets and completing inventories

·       Notifying creditors of the estate’s existence

·       Filing any necessary paperwork with the court

·       Paying bills, creditors, and taxes

·       Responding to requests for information from named beneficiaries or heirs

·       Making distributions to the named beneficiaries or heirs

·       Closing the estate once all of the above is complete

Should You Open Probate on Your Own?

There is no legal obligation to retain an attorney for probate and the Colorado Judicial Branch keeps all necessary probate forms online for those who wish to proceed on their own. As a starting point, you should ask whether it appears there are any questions or disputes involved that might lead to litigation. If so, it may be helpful to seek an attorney’s guidance.

For those residing outside of Colorado, it is still possible to apply to become a PR and go through the probate process from another state. This can be very challenging, so it’s advisable to seek an attorney to assist in the process. For example, in Colorado, the probate court does not allow unrepresented parties to file documents electronically, and having to mail or bring documents in person can become quite tedious.

The probate process can feel overwhelming, particularly while grieving the passing of a loved one. Whether you’re considering applying to become a PR, you have questions about a will, you’d like help representing your interests as an heir, or you have questions about the probate process itself, please feel free to contact Gant Law and one of our probate attorneys will gladly assist you.

Navigating the Probate Process in Colorado: Benefits, Drawbacks, and Considerations

The probate process is a critical aspect of estate administration, playing a pivotal role in the distribution of assets after an individual passes away. In Colorado, understanding the nuances of probate can empower you to make informed decisions about your estate planning. In this blog post, we will explore the probate process in Colorado, its benefits, drawbacks, and key considerations to help you navigate this often-complex legal terrain.

Understanding the Probate Process in Colorado:

Probate is the legal process through which a deceased person's estate is settled and distributed under court supervision. In Colorado, the probate process typically involves the following key steps:

Filing the Petition: A petition is filed with the probate court to initiate the process.

The court reviews the will, if available, and appoints a personal representative (executor) to administer the estate.

Inventory and Appraisal: The personal representative compiles an inventory of the deceased person's assets and obtains appraisals if necessary. The personal representative also takes steps to secure and protect the deceased person’s assets during the probate process.

Notifying Creditors: Creditors are notified of the death, and a specified period is provided for them to make claims against the estate.

Paying Debts and Taxes: Debts and taxes owed by the deceased person are paid from the estate assets.

Distributing Assets: Remaining assets are distributed to beneficiaries according to the terms of the will or the state's intestacy laws if there is no will.

Benefits of Probate in Colorado:

Court Oversight: Probate provides a structured legal process with court supervision, ensuring that the estate is administered according to the laws of your state.

Creditor Protection: The probate process includes a period for creditors to make claims, protecting the estate from unknown debts after distribution.

Clear Title Transfer: Probate establishes clear ownership and title transfer of assets to heirs, providing a legal framework for the transfer of property.

Drawbacks of Probate in Colorado:

Time-Consuming: Probate can be a lengthy process, delaying the distribution of assets to beneficiaries. Depending on the complexity of the estate, the whole process could take 6 months but could also go on for multiple years.

Costs: We always tell clients that it is impossible to predict how much the probate process might cost, because it depends on a variety of factors, including the family dynamic, whether the decedent had a valid and unambiguous plan in place, whether the assets are easily identifiable and easy to locate, etc.

So, why put in the work, now, to avoid it? Properly prepared estate planning documents are designed to avoid unwanted costs, time, and effort of probate, especially appreciated during a time when families are grieving.

Public Record: Probate proceedings are a matter of public record, potentially exposing family and financial matters to public scrutiny. If family privacy is important to you, avoiding probate should be a goal.

Considerations for Estate Planning:

Avoiding Probate: Explore strategies to minimize or avoid probate, such as establishing a living trust, utilizing joint ownership with rights of survivorship, and beneficiary deeds. These tools, if used correctly, can allow your estate to avoid probate entirely.

Legal Guidance: Consult with an experienced estate planning attorney in Colorado to navigate the complexities of probate and explore tailored solutions for your specific situation.

Reviewing Beneficiary Designations: Ensure that beneficiary designations on assets such as life insurance policies and retirement accounts are up-to-date to streamline the transfer of these assets outside of probate. 

Navigating the probate process in Colorado involves a careful balance of legal considerations, time, and costs. Understanding both the benefits and drawbacks of probate empowers you to make informed decisions when crafting your estate plan. Whether you choose to embrace probate or explore alternatives, seeking the guidance of a knowledgeable estate planning attorney ensures that your wishes are carried out in the most efficient and legally sound manner.

Can't I just write my own Estate Plan online?

Many of these standardized, cookie-cutter legal products advertise low prices and a simple estate planning process.  However, a premade fillable form will not provide you with the time and expertise it requires to specially tailor your estate plan to the nuances of your unique circumstances. Only an experienced attorney can provide you with the effective, suitable set of documents that will meet your particular estate planning needs.

 Here are a few of the most notable reasons to hire an attorney rather than purchase a premade form:

1.     Premade forms do not account for your specific situation. Their nature is to apply generally to all circumstances, which comes at the price of applying well to very few individual situations. This forest-over-trees approach renders these products potentially ineffective or even actively detrimental to your desires.

2.     Laws are not static. They change frequently, and you can count on an experienced attorney to keep up with these changes in order to accurately and effectively meet her clients’ needs. Meanwhile, a premade form may fail to accurately reflect or properly apply a recently changed law in your state, leaving your wishes for your estate unfulfilled.

3.     The companies that sell these products affirm that they are no substitute for an experienced attorney. Their disclaimers often state that they are not in fact, authorized to practice law; that their forms are not guaranteed to be up to date; that their information should not be considered reliable legal advice; and that their services are never a substitute for the services of an attorney.

4.     Customers of these companies oftentimes report poor customer service, ineffective legal services, and questionable business practices.  Meanwhile, when you hire an experienced attorney, you can expect personalized service, expert legal assistance, and transparency regarding payment and services rendered.

Though these products may seem like a bargain, they may result in an ineffective and troublesome estate plan with financial consequences.  Gant Law, LLC can expertly tailor your estate plan to your unique situation so you can effectively protect and preserve your assets in the way that works best for your unique estate and your specific desires. Contact us today to set up a consultation with one of our experienced estate planning attorneys.

Understanding the differences between PER STIRPES, BY REPRESENTATION, and PER CAPITA for Your Estate Plan

Introduction:

Embarking on the journey of estate planning in Colorado is a crucial step towards securing the financial future of your loved ones. In this process, you'll likely encounter terms such as PER STIRPES, BY REPRESENTATION, and PER CAPITA, each playing a vital role in how your assets are distributed among heirs. As you consider these options, it's essential to understand the nuances and implications they carry within the framework of Colorado law. This blog post aims to shed light on the differences between these distribution methods and help you make informed decisions tailored to your unique family dynamics.

PER STIRPES: Preserving Family Branches

PER STIRPES, or "by roots," is a distribution method that emphasizes family lines. In Colorado, if a primary beneficiary predeceases you, their share is passed down to their descendants, ensuring each branch of your family tree receives a fair share. For example, if you have three children, and one predeceases you, their share would be divided equally among their children (your grandchildren).

Consider PER STIRPES if you want to maintain balance among your family branches and ensure that descendants of predeceased beneficiaries are not overlooked.

BY REPRESENTATION: Fairness Across Branches

BY REPRESENTATION, often referred to as "per stirpes with representation," is similar to PER STIRPES but takes into account the number of living descendants in each branch. In Colorado, if a primary beneficiary is no longer alive, their share is divided equally among their living descendants. This method ensures fairness among your surviving beneficiaries, irrespective of the number of descendants in each family branch.

Choose BY REPRESENTATION if you want to consider the number of living descendants in each branch, promoting an equitable distribution among your heirs.

PER CAPITA: Equality Across Individuals

PER CAPITA, or "by the head," distributes your estate equally among living beneficiaries without considering family lines. In Colorado, if a primary beneficiary is deceased, their share is divided equally among the remaining living beneficiaries. This method ensures simplicity and equality among your surviving heirs, regardless of their relationship or family branch.

Choose PER CAPITA if your goal is to distribute your assets equally among your living beneficiaries, regardless of family structure.

Navigating the intricacies of PER STIRPES, BY REPRESENTATION, and PER CAPITA is crucial for creating an estate plan that aligns with your wishes. Consulting with an experienced estate planning attorney in Colorado can provide invaluable insights into the implications of each method, helping you make decisions that best suit your family dynamics and financial goals. As you embark on this journey, remember that a well-informed approach ensures the enduring financial well-being of your loved ones.

Estate Planning for Singles: Securing Your Future, Your Way

Estate planning is often associated with marriage, kids, and accumulated wealth, but the truth is, it's a vital process for everyone, including singles. Whether you're young or old, rich or poor, your unique circumstances deserve careful consideration. Let's delve into the why and how of estate planning for singles, covering both life and death scenarios: 

Everyday Matters That May Affect You:

Income Streams & Assets:

Who will receive things such as your home, cars, bank accounts, investments, and personal property when you pass? Even if you don't have substantial savings, chances are you receive some form of income. Consider what happens to that income after you pass away, including paychecks or other disbursements. If you want a say in who receives those things, and who will oversee the process, a Trust or Will is in order.

Living Arrangements:

Do you live with roommates, friend, relatives, or a partner? If so, do you have written arrangements for what happens if the relationship falters? Who owns your residence? If it’s shared, do you understand the terms of that shared ownership? Who gets to stay if the relationship breaks down? If you (or someone else) has been paying toward portions of the residence of utilities, have those gone toward equity, contributions that can be paid back, spent rents, or something else? And for those who will receive your things when you pass, will those people be able to distinguish what's yours from what’s not?

These issues can be addressed through proper estate-planning tools such as cohabitation agreements, deeds, and a will or trust.

Healthcare Needs:

In case of medical issues, do you have someone designated to make choices when you can't? From anesthesia decisions to surgery risks, having a trusted person in place is crucial. You can designate a trusted friend or loved one to help you with these through use of a Medical Power of Attorney.

Similarly, do you have wishes for how your medical decisions would be handled in the case of a terminal illness or coma? Physicians and medical teams are unable to make certain decisions without written directives from you. Here is where an Advance Directive (sometimes called Living Will) comes in.

Financial Responsibilities:

Bills need to be paid, even if you're not there. Surprisingly, some creditors will not accept payments from a third party without written authorization. You’ll want to plan for someone to manage your finances if unforeseen circumstances arise, such as a car accident; if you're away on vacation and payments become due; or if you become incapacitated. A Financial/General Durable Power of Attorney can provide you with the ability to name a trusted friend or loved one to help in these scenarios.

Children:

If you have minor children or children with severe disabilities, do you know who will take care of them if you pass away or become incapacitated? You can nominate a guardian to care for their health and daily needs and a conservator to manage their finances, but such nominations need to be completed clearly and accurately to be effective.

Pet Ownership:

Consider your furry family members. Who has the legal right to enter your home and care for them if you're unable to? Make these arrangements clear, and ensure someone knows how to access your home in case of an unforeseen accident or incident. A Trust and other estate-planning tools can help ensure that all your household members are cared for in the event of your death or incapacity.

Business Assets:

More and more of us are self-employed these days. If that describes you, or if you have any interest in a business, now is the time to make sure the business has an up-to-date operating agreement or similar written documentation that includes planning for a manager’s/owner’s incapacity and/or death. Without such documentation, many times the business assets are dissipated in the process of attempting to wind down and dissolve without clear direction.

Services/Funeral:

Do you have a picture in your mind of what your passing may be like and the services afterward? Without written directions, your loved ones may not know what to do to best celebrate your life. Make arrangements for your funeral services with a Disposition of Last Remains.

 Estate planning for singles is about taking control of the present and securing your future. By addressing both life and death scenarios, you're ensuring that your wishes are known and respected. Don't let the misconception that estate planning is only for married couples deter you – it's for everyone, including you.

When Does a Guardianship End in Colorado?

What is a guardianship in Colorado?

A guardianship is a court-imposed relationship either for a minor or an incapacitated person. Unless limited by the court who makes the appointment, a guardian for a minor legally steps into the role of a parent, and both a guardian for a minor or one for an incapacitated person are legally responsible for that person’s support, care, education, health, and welfare. Both types must also act in the minor/incapacitated person’s best interests, exercising reasonable care, diligence, and prudence, among other duties. See C.R.S. §§ 15-14-207 and 314 for more information.

When does a guardianship end in Colorado?

A guardianship for a minor ends when the person is no longer a minor (so long as they are not also incapacitated). But “minor” means something different for guardianships than it does in general. For a guardianship, a “minor” is someone who is (1) not emancipated, (2) not married, and (3) not yet twenty one years old. This means a guardianship of an otherwise capacitated minor ends at age 21 unless the minor gets married or becomes legally emancipated before then. See C.R.S. § 15-14-102.

For an incapacitated person, a guardianship terminates automatically at death or by court order, after a hearing showing that the person no longer needs the guardianship. See C.R.S. § 15-14-318.

How does a minor become emancipated in Colorado?

Legal emancipation in Colorado is a bit nuanced, but some events that could render a minor legally emancipated are as follows:

·       Joining the military/armed forces;

·       Living on their own and supporting themselves financially;

·       Supporting themselves financially and conducting their lives completely independently;

·       Receiving a court order of emancipation;

·       Getting married

What does incapacitated mean for purposes of a guardianship?

An incapacitated person is someone who is unable to effectively receive or evaluate information, make decisions, or communicate decisions to such an extent that they are no longer able to maintain physical health, safety, or self-care (even with technological assistance). See C.R.S. § 15-14-102.

Do you or someone you know need to terminate a guardianship?

We at Gant Law, LLC are skilled at both opening, limiting, and terminating guardianships. Give us a call today and we will be happy to guide you through this process.

What are Legal Retainers: A Guide by Gant Law, Your Greeley, Colorado Family, Probate, and Estate Planning Experts

If you're in Greeley, Colorado, and seeking advice on a family, probate, or estate-planning matter, Gant Law is your local go-to law firm. We understand that legal terms can be overwhelming, so let's unravel the mystery behind one such term – legal retainers.

What's a Legal Retainer, Anyway?

Alright, let's get to the bottom of this retainer business. Think of it like this: when you're about to hire a lawyer to tackle your legal woes, what are they giving you in return? Their time. But once they’ve put in their time, it’s expended, and they cannot withhold it to ensure payment. Thus, the legal retainer. You can think of it as an upfront payment by a client for future time the attorney will put in. It’s the assurance of payment before they roll up their sleeves and dive into your case.

Now, these retainer funds can also go by the name "trust funds." Fancy, right? But don't let that throw you off. This is just a way to assure both you and the lawyer that you're committed to this legal journey.

It's Still Your Money (Mostly)

The important thing about a retainer is that the money you put in is still yours until your lawyer earns it. Your lawyer needs to put in some hours and effort to earn retainer funds. So, until they've put in the work, it's your money, just kept in a safe account. And another cool part? The law firm does not earn any interest on that account. Instead, it goes to a public fund to help with legal needs for those who cannot afford a lawyer.

What Happens After the Legal Dust Settles?

Your legal matter is all sorted, and your lawyer has fought the good fight. What happens if you have leftover retainer funds? Well, no need to worry there. Any of those funds that haven't been earned by the lawyer will make their way back to you.

Trial Retainer

Now, let's say your legal journey is more of a marathon than a sprint. If your case goes all the way to trial, you might need to add more funds to your retainer. But this time, it's called a "trial retainer." It's like a second wind for both you and your lawyer to keep pushing forward. It also will help you more seriously and realistically weigh the pros and cons of settlement, if that is an option for you.

Running Low on Funds? No Problem

Okay, imagine you're driving across the country and your gas gauge is creeping toward empty. That's similar to when your retainer funds start running low. But don't sweat it too much. You won't suddenly find yourself without legal backup. Usually, your lawyer’s firm will give you a heads-up when the funds are running thin.

And if the "low funds" light starts blinking, you'll be asked to top off your retainer. This is often done in $1000 increments. It might feel like a hassle, and in that case, feel free to add more than $1000.

In a Nutshell

So, there you have it – the scoop on legal retainers without the legal lingo. Remember, a retainer is like a financial handshake to kickstart your legal process. You can think of it as a prepayment for legal services. Your lawyer works to earn those funds, and if there's anything left after your legal matter, it heads back to you. Just be prepared for the possibility of a trial retainer or topping up if your funds start dwindling.

Legal matters might be confusing, but the idea of a legal retainer doesn't have to be. It's all about putting a bit of skin in the game to get the legal wheels turning.

What is a Power of Attorney?

Barring certain disabilities, every adult in the US has the right to sign their own contracts, do their own banking, make their own health decisions, and the like. But what happens if that person is unavailable when a decision needs to be made? Perhaps they are under anesthesia when a medical complication arises and a doctor needs someone to choose Option A or Option B. Or maybe the person is out of the country when a document needs to be signed in person. These kinds of situations, and many others, are where a Power of Attorney document comes in handy.

In a Power of Attorney document, a capable adult can delegate certain authority to another person. This could be as broad as giving a trusted loved one authority to do anything you yourself could do (though always with the responsibility to act as they truly believe you would act and never supplant their personal desires for your wishes). This could also be limited to specific tasks such as granting authority to a third party to sign a real estate contract on your behalf so you don’t have to attend a closing in person.

There are two main types of Power of Attorney documents: one for financial issues (often called a ‘General’ Power of Attorney) and one for health issues (usually aptly named a ‘Health Care’ Power of Attorney).

Many times, both documents are used when a person begins to lose the ability to manage day-to-day affairs as well as they once did. A financial Power of Attorney, for instance, is used to allow a trusted child to help with bills—checking the bank account to ensure things are scheduled to be paid on time, that no one is taking financial advantage of their parent, etc. A health care Power of Attorney is often used to allow a trusted child or other third party to attend medical appointments with an aging person and ensure they are understanding medical instructions, such as which medications to take when, what the purpose is, and potential risks or side effects.

If there is no Power of Attorney document in place when the need for help arises, banks, doctors, and others will often not allow anyone to step in to help. If things get too bad—to the point where the person has lost the ability to legally sign a Power of Attorney—then the only remaining option for intervention is usually to get the court involved through a guardianship or conservatorship proceeding.

For this reason, it is important to get Power of Attorney documents completed well before the need arises, and to monitor them from year to year in case your preferences have changed.

At Gant Law, Power of Attorney documents are one of the most important pieces of your estate plan that we help with. Contact us today for help getting these important documents set up.

Imputing Income to Non-Working Parents – Colorado Changes from the 2023 Legislative Session

If you’re involved with either receiving or paying child support, you’ve probably heard about the concept of imputing income to a non-working parent. In Colorado, the amount one pays in child support is decided by a few factors, with one of the major ones being how much monthly gross income each parent receives. But what happens when one parent just stops working or takes part-time work that earns less than they would have otherwise made?

Under Colorado Revised Statutes §14-10-115, Colorado courts have long been permitted to attribute income to a parent who they find is either voluntarily not working at all or not working as much as they reasonably could be. No more playing the “I’ll just quit and not have to pay support” game. This ability to impute income, however, has been both bane and blessing. For parents truly trying but struggling to find good work, the statute has sometimes been used to their detriment, imputing a full 40-hour work week and 52-week year of income, which could then either greatly reduce the support received (if they are the receiving parent) or even land them with an unbending support order that mounts and gains interest.

What changed in 2023 for non-working parents?

In 2023, the Colorado legislature updated the statute to include a bit more flexibility and leniency for those non-working parents. In subsection (5)(b.5)(II), the court now first considers the “typical hours available to workers in the parent’s job sector.” If the court does not receive good information about what those typical hours would be, then the they will default to imputing only 32 hours/week of work and 50 weeks per year to the non-working parent, as opposed to 40 hours/week and 52 weeks per year.

What does this mean for working parents?

For a working parent, the same statute—C.R.S.§14-10-115—defines what all counts as income and what doesn’t. Income is generally pretty broad and includes most all types of money coming in. It can certainly feel (and sometimes is) unfair for the parent who is working to bear the brunt of the support, but it is important to remember that the statue is setup to ensure there are funds for the child or children. Yes, those funds are given to the other parent, and yes that parent then makes decision about spending, but ultimately, the intent is to provide for the child.

Now, one subsection—(5)(a)(II)—does exclude certain types of income for the working parent. This includes income from additional jobs that result in employment of more than 40 hours per week or more than “what would otherwise be considered to be full-time employment.” It is unclear whether the legislature considered changing this section to go hand-in-hand with the imputation section, but there appears to be a discrepancy now that they did not make such a change.

This could be a good time for working parents to bring this “what would otherwise be considered full-time” language back to the court’s attention. Defining what would is considered full-time employment in Colorado is not always straight-forward, and usually depends on an employee’s classification, but in some areas of Colorado’s Administrative Code, full-time is indeed defined as 32 hours, so an argument could potentially be made that a working parent’s income should also only include one job at 32 hours of pay. This is a novel argument, but one that might be ripe for consideration in fairness with the change to (5)(b.5)(II).

Should I Hire an Attorney for my Colorado Divorce?

Divorce is a complicated and emotionally charged process. It is not something that should be taken lightly or without professional guidance. One of the most important decisions that you can make when going through a divorce in Colorado is to hire an experienced attorney. Here are some reasons why:

1 Understanding Colorado Laws

Colorado has specific laws and procedures for divorce. Hiring an experienced attorney who is familiar with Colorado divorce laws can help you navigate the process and ensure that your rights are protected. An attorney can also help you understand the legal terminology and procedures involved in your divorce case.

2. Protecting Your Rights

A divorce can have a significant impact on your life, your finances, and your future. An experienced attorney can help you protect your rights throughout the divorce process. This includes ensuring that your assets are fairly divided, that any child custody arrangements are in your child's best interest, and that you receive any spousal support to which you may be entitled.

3. Negotiating Settlement

Divorce cases can be resolved through settlement negotiations or trial. An experienced attorney can help you negotiate a settlement that is fair and equitable. Settlement negotiations can be complex, and an attorney can help you navigate the process to ensure that your interests are protected.

4. Handling Court Proceedings

If your case goes to trial, an experienced attorney can represent you in court. An attorney can present evidence, cross-examine witnesses, and argue on your behalf. Going to court can be a stressful experience, and having an experienced attorney by your side can help you feel more confident and secure.

5. Providing Emotional Support

Divorce can be an emotionally charged process. An experienced attorney can provide you with emotional support and guidance throughout the process. Your attorney can help you make informed decisions and can provide you with resources and referrals for counseling or therapy if needed.

In conclusion, hiring an experienced attorney is crucial for anyone going through a divorce in Colorado. An attorney can help you navigate the legal system, protect your rights, negotiate settlements, represent you in court, and provide emotional support. A divorce can be a difficult and overwhelming experience, but with the help of an experienced attorney, you can feel more confident and secure throughout the process.

What is a Paralegal and Why Should I Care If My Law Firm Has One?

A paralegal is a professional who assists lawyers in various legal tasks. They work under the supervision of a lawyer and provide support in areas such as document preparation, research, and case management. Some of the specific duties of a paralegal may include conducting legal research, drafting legal documents, organizing case files, interviewing clients and witnesses, assisting with court filings, assisting in court logistics, and other administrative tasks.

Paralegals can work in a variety of settings, including law firms, corporate legal departments, government agencies, and non-profit organizations. While the specific duties and responsibilities of a paralegal can vary depending on the employer and the area of law in which they specialize, they generally play an important role in helping lawyers to provide high-quality legal services to their clients at a lower cost to the customer.

It is often joked about, but accurately stated, that paralegals are the workhorses of a law firm.

Why should this matter to you?

Ultimately, a paralegal on staff saves you money on your legal fees in several ways.

First, they can assist lawyers with various simple but necessary tasks, which allows the lawyer to focus on the more complex legal issues and strategy in a case. This enables the attorney to bill their hourly rate only for things an attorney needs to have their brain and skills on.

Second, paralegals can handle many administrative tasks, such as document review, drafting legal documents, and organizing case files. This can save clients money because paralegals generally charge less per hour than attorneys.

Third, paralegals are trained to conduct legal research and stay up-to-date on legal developments. This means they can often find the information needed to resolve legal issues, answer questions, determine procedure, or quote case law in pleadings quickly and cost-effectively.

Overall, by working closely with lawyers and taking on many of the administrative and research tasks, paralegals can help to streamline legal processes and reduce costs for clients. Here at Gant Law, ethical billing is a matter of principle and pride for our whole team. In the best interest of our client’s financial well-being, we proudly employ two paralegals and plan to expand as demand allows. Our paralegals work hard to do any and all tasks ethically within their ability in order to reduce costs for our clients and free the attorneys to do what attorneys do best – look out for their client’s best interests and advocate strongly for their case.

What is a prenuptial agreement and should I get one?

A martial agreement, also commonly known as prenuptial agreement, prenup, and/or post-nuptial agreement, brings with it a certain negativity in many minds of the general public – but is that negative connotation warranted? Of course, the answer always depends on the individual situation, but a marital agreement can be a very useful tool for couples entering into a marriage who want to get on the same page as to their finances and expectations upon death or divorce.

First off, it is important to explain what a marital agreement is and what you can include within such an agreement. A marital agreement is a legal contract between two individuals who intend to marry (or who are already married) that outlines their marital rights and obligations upon one of the spouse’s death or divorce, or even sometimes during the marriage. Most commonly, marital agreements are used to outline financial settlement upon divorce.

Colorado has adopted the Uniform Premarital and Marital Agreements act, also known as UPPA, which outlines the requirements and prohibitions within a marital agreement.

Every marital agreement requires the following:

• The agreement must be in writing and signed by both parties freely and voluntarily.

• The agreement must not interfere with other agreements signed by the parties under UPPA.

• The agreement must be fair, reasonable, and not unconscionable.

• Both parties have fairly and accurately disclosed their assets and existing financial obligations.

• Both parties had access to independent legal counsel or the agreement advised them of their waiver of that right.

Importantly, a marital agreement cannot be created against public policy and cannot contract for any terms concerning children, or child support.

With a properly drafted marital agreement, both parties will be able to define property rights, allocate liabilities, establish spousal maintenance upon a divorce, and a whole host of other financial terms, so long as the provisions do not violate public policy.

We know conversations between spouses when considering a marital agreement can be difficult and we at Gant Law are here to answer any questions you may have along the way. If you are considering entering into a marital agreement with your spouse and are looking for an attorney to aid in the drafting of the agreement or reviewing a previously drafted agreement before you sign, give our office a call and schedule a consultation today. We look forward to speaking with you soon!