April 25, 2019

e-Legislative Report: Week of March 14, 2016

Welcome to another edition of the e-leg report. We’re nearing the halfway point at the capitol, and that means the state budget debate is at hand. A number of bills that the CBA is working are subject to appropriations – and only after the budget debate is settled will we know whether they are likely to be funded or not.

Feel free to drop me a line on how we are doing or raise an issue on a piece of legislation. Contact me at jschupbach@cobar.org.

CBA Legislative Policy Committee

For followers who are new to CBA legislative activity, the Legislative Policy Committee (“LPC”) is the CBA’s legislative policy making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions from requests from the various sections and committees of the Bar Association. Members are welcome to attend the meetings—please RSVP if you are interested.

LPC Meeting held Friday, February 26, 2016

There was no meeting of the LPC on March 4. We will be considering a number of bills this coming week, but here is a quick rundown of the bills on which we have recently taken a position.

HB 16-1165 – Colorado Child Support Commission Statutory Changes
The LPC voted to seek an amendment to this bill, which was subsequently added in the House before the bill was passed on to the Senate. The amendments offered clarify the calculations of parenting time in certain circumstances

HB 16-1275 – Taxation Of Corporate Income Sheltered In Tax Haven
The LPC voted to oppose this bill because of vague language that could result in unnecessary litigation and an additional burden on the judiciary.

HB 16-1270 – Security Interest Owner’s Interest In Business Entity
This is the first of a package of four business law clean-up bills from the Business Law Section. It aims to protect the security interest of owners and secure the “pick a partner” provision in Colorado law for all types of business entities.

SB 16-131 – Overseeing Fiduciaries’ Management Of Assets
This bill, written by members of the Trust & Estate and Elder Law sections, clarifies provisions in the Colorado Probate Code regarding a person’s right to counsel and the removal of a fiduciary.

SB 16-133 – Transfer Of Property Rights At Death
This bill clarifies the process and rights associated with property transfers after death by clarifying existing law and providing that the Colorado Probate Code prevails over the Uniform Power of Appointment Act where the Colorado Probate Code is better suited for the state’s probate process.

Bills that the LPC is monitoring, watching or working on can be found here.

New Bills of Interest

HB 16-1339 – Agricultural Property Foreclosure
Current law establishes the initial date of sale of foreclosed property based on who is selling the property and whether the property is agricultural or nonagricultural. Property is nonagricultural unless all of the property is considered agricultural. The bill extends the provisions relating to agricultural property to property in which any part is agricultural.

SB 16-148 – Require Civics Test Before Graduating from High School
Under existing law, each high school student must satisfactorily complete a civics course as a condition of high school graduation. In connection with this requirement, the bill requires each student who is enrolled in ninth grade during or after the 2016-17 school year to correctly answer, before graduating from high school, at least 60 questions from the civics portion of the naturalization test (test) used by the United States citizenship and immigration services. The school district, charter school, or school operated by a board of cooperative services (local education provider) that enrolls the student may allow the student to take the test on multiple occasions while enrolled in ninth through twelfth grade and, if necessary, to repeat the test until the student correctly answers at least 60 questions. Once the student correctly answers 60 questions, the local education provider will note the accomplishment on the student’s transcript. A student who has a disability is excused from this requirement, except to the extent it may be required in the student’s individualized education program. The superintendent or principal of a local education provider may waive the requirement for a student who meets all of the other graduation requirements and demonstrates the existence of extraordinary circumstances that justify the waiver. Each local education provider has complete flexibility in determining the manner of delivering the test and may incorporate the test into its existing curriculum. A local education provider shall not use the results of the test in measuring educator effectiveness.

SB 16-150 – Marriages By Individuals In Civil Unions
The bill addresses issues that have arisen in Colorado regarding marriages by individuals who are in a civil union or who entered or who will enter into a civil union after the passage of the bill. The bill amends the statute on prohibited marriages to disallow a marriage entered into prior to the dissolution of an earlier civil union of one of the parties, except a currently valid civil union between the same two parties. The executive director of the Department of Public Health and Environment is directed to revise the marriage license application to include questions regarding prior civil unions. The bill states that the “Colorado Civil Union Act” (act) does not affect a marriage legally entered into in another jurisdiction between two individuals who are the same sex. The bill states that a civil union license and a civil union certificate do not constitute evidence of the parties’ intent to create a common law marriage. Two parties who have entered into a civil union may subsequently enter into a legally recognized marriage with each other by obtaining a marriage license from a county clerk and recorder in the state and by having the marriage solemnized and registered as a marriage with a county clerk and recorder. The bill states that the effect of marrying in that circumstance is to merge the civil union into a marriage by operation of law. A separate dissolution of a civil union is not required when a civil union is merged into a marriage by operation of law. If one or both of the parties to the marriage subsequently desire to dissolve the marriage, legally separate, or have the marriage declared invalid, one or both of the parties must file proceedings in accordance with the procedures specified in the “Uniform Dissolution of Marriage Act.” Any dissolution, legal separation, or declaration of invalidity of the marriage must be in accordance with the “Uniform Dissolution of Marriage Act.” If a civil union is merged into a marriage by operation of law, any calculation of the duration of the marriage includes the time period during which the parties were in a civil union. The criminal statute on bigamy is amended, effective July 1, 2016, to include a person who, while married, marries, enters into a civil union, or cohabits in the state with another person not his or her spouse and to include a person who, while still legally in a civil union, marries, enters into a civil union, or cohabits in the state with another person not his or her civil union partner. mmittees of the Bar Association.

Dignity to All Persons: CBA-CLE to Host LGBT Law Institute

LGBTOn June 26, 2015, the United States Supreme Court decided in the landmark case Obergefell v. Hodges that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. In reaching this conclusion, the majority relied on four principles and traditions that demonstrate marriage is a fundamental right under the Constitution, and applies with equal force to same-sex couples.

The first premise is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. The second principle in the Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. The third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation and education. Finally, the U.S. Supreme Court’s cases and our Nation’s traditions make clear that marriage is a keystone of the Nation’s social order. Writing for the majority, Justice Kennedy stated:

The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era. Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it disparages their choices and diminishes their personhood to deny them this right.

What is the case law, legislation and culture surrounding the Lesbian/Gay/Bisexual/Transgender journey to this holding? Attend the Colorado Bar Association CLE’s Lesbian/Gay/Bisexual/Transgender Law Institute on September 24-25, 2015, and hear not only from Colorado Supreme Court Justice Monica Marquez, but also from Colorado Senator Pat Steadman on the LGBT legal history and landscape in our State and our Nation. Learn about changes in government programs after the Windsor case, and about LGBT issues in both the employment law and immigration contexts. Also find out about how to reach out to the LGBT community and the logistics of navigating through such legal issues as changing one’s name and Social Security if you are a transgender person.

The Institute will showcase many points of view. On August 13, 2015, the Colorado Court of Appeals affirmed a finding from May 2014 from the Colorado Civil Rights Commission that the Masterpiece Cakeshop’s policy of turning away a same-sex couple’s request for a cake violates Colorado’s Anti-Discrimination Act. The speaker at the Institute will address the topic from the perspective of Masterpiece Cakeshop owner Jack Phillips, who refused to bake a wedding cake for a same-sex couple because of his religious beliefs. Learned legal scholars will also discuss the salient points from both the majority and dissenting opinions in the Obergefell case. Religious freedoms in connection with LGBT issues will also be discussed.

There are many more topics to be found when you register here. We’ll see you in the front row on September 24-25.

CLE Program: Lesbian/Gay/Bisexual/Transgender Law Institute

This CLE presentation will take place Thursday, September 24, and Friday, September 25, 2015 at the CLE offices. Click here to register for the live program or click here to register for the webcast.

Can’t make the live program? Order the homestudy here – CD • Video OnDemand • MP3

SB 15-016: Clarifying Changes to Civil Unions When Same-Sex Marriage Becomes Legal

On January 7, 2015, Sen. Pat Steadman introduced SB 15-016 — Concerning Marriages by Individuals who are Parties to a Civil Union, and, in Connection Therewith, Prohibiting Marriages in Circumstances in which One of the Parties is Already in a Civil Union with Another Individual, Addressing the Legal Effect of Parties to a Civil Union Marrying Each Other, Clarifying the Dissolution Process when Parties to a Civil Union Marry, and Amending the Bigamy Statute to Include Parties to a Civil Union. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill addresses issues that have arisen in Colorado regarding marriages by individuals who are in a civil union or who will enter into a civil union after recent court decisions have declared same-sex marriage bans, such as section 31 of article II of the state constitution, unconstitutional. The bill amends the statute on prohibited marriages to disallow a marriage entered into prior to the dissolution of an earlier civil union of one of the parties, except a currently valid civil union between the same 2 parties. The executive director of the department of public health and environment is directed to revise the marriage license application to include questions regarding prior civil unions. The bill states that the “Colorado Civil Union Act” (act) does not affect a marriage legally entered into in another jurisdiction between 2 individuals who are the same sex. The construction statute for the act is amended to clarify that it must not be construed to create a marriage, including a common law marriage, between the parties to a civil union. Two parties who have entered into a civil union may subsequently enter into a legally recognized marriage with each other by obtaining a marriage license from a county clerk and recorder in this state and by having the marriage solemnized and registered as a marriage with a county clerk and recorder. The bill states that the effect of marrying in that circumstance is to merge the civil union into a marriage by operation of law. A separate dissolution of a civil union is not required when a civil union is merged into a marriage by operation of law. If one or both of the parties to the marriage subsequently desire to dissolve the marriage, legally separate, or have the marriage declared invalid, one or both of the parties must file proceedings in accordance with the procedures specified in the “Uniform Dissolution of Marriage Act”. Any dissolution, legal separation, or declaration of invalidity of the marriage must be in accordance with the “Uniform Dissolution of Marriage Act”. If a civil union is merged into marriage by operation of law, any calculation of the duration of the marriage includes the time period during which the parties were in a civil union. The criminal statute on bigamy is amended, effective July 1, 2015, to include a person who, while married, marries, enters into a civil union, or cohabits in this state with another person and to include a person who, while still legally in a civil union, marries, enters into a civil union, or cohabits in this state with another person.

The bill was assigned to the Senate State, Veterans, & Military Affairs Committee, where it was postponed indefinitely on January 21, 2015.

Bills Regarding Joint Tax Returns for Partners in Civil Unions, Funding for Persons with Intellectual Disabilities, Appropriations, and More Signed

On Thursday, February 27, 2014, Governor Hickenlooper signed 28 bills into law. Seventeen of the bills were supplemental appropriations bills, which are not summarized here, but many of the other bills are highlighted below. To date, the governor has signed 35 bills into law.

  • SB 14-004 – Concerning the Role and Mission of Community Colleges, by Sen. Nancy Todd and Reps. James Wilson and Jenise May. The bill allows community colleges to provide Bachelor of Applied Science degrees.
  • SB 14-019 – Concerning the State Income Tax Filing Status of Two Taxpayers who may Legally File a Joint Federal Tax Return, by Sen. Pat Steadman and Reps. Dominick Moreno and Joann Ginal. The bill requires partners in a civil union who are eligible to file their federal income taxes jointly or separately to file their Colorado taxes with the same filing status. It also changes statutory language from “spouses” to “taxpayers” in many places.
  • SB 14-025 – Concerning Grants for Domestic Wastewater Treatment Works for Small Communities, by Sen. Mary Hodge and Rep. Randy Fischer. The bill makes grants available for small communities for projects to assist domestic wastewater treatment works. This program is to supplement an existing grant program for which grants have not been available since 2006.
  • SB 14-067 – Concerning Aligning Certain State Medical Assistance Programs’ Eligibility Laws with the Federal “Patient Protection and Affordable Care Act”, by Sen. Irene Aguilar and Rep. Jonathan Singer. The bill changes statutory language regarding eligibility for medical assistance, electronic data collection for determination of eligibility, and eligibility requirements for pregnant women and children.
  • HB 14-1004 – Concerning Emergency Management, and, in Connection Therewith, Eliminating and Reorganizing Two Entities Within the Division of Homeland Security and Emergency Management in the Department of Public Safety and Authorizing the Governor to Provide Individual Assistance During a Disaster Absent a Presidential Declaration of the Same, by Reps. Mike Foote and Stephen Humphrey. The bill reorganizes certain functions within the Department of Public Safety and authorizes the governor to provide financial assistance in times of emergency without a presidential declaration.
  • HB 14-1078 – Concerning Changes to the Public Education Accreditation Statutes as a Result of Legislative Review of the Rules of the State Board of Education, and, in Connection Therewith, Clarifying the Term “Public School” in the Accreditation Statutes, by Rep. Brittany Pettersen and Sen. Mike Johnston. The bill clarifies that schools that online programs housed in public schools are not considered online schools, and allows automatic renewal of accreditation of schools the category of accredited with an improvement plan or higher.
  • HB 14-1250 – Concerning Authorizing Payments from the Contingency Reserve Fund for the 2013-14 Budget Year for School Districts that are in Significant Financial Need Due to Unanticipated Events Occurring in the 2013-14 Budget Year, and, in Connection Therewith, Making an Appropriation, by Rep. Jenise May and Sen. Pat Steadman. The bill appropriates moneys from the General Fund to be used for school districts that were impacted by the flooding in September 2013.
  • HB 14-1252 – Concerning Funding for System Capacity Changes Related to Intellectual and Developmental Disabilities Waiver Services, and, in Connection Therewith, Making and Reducing Appropriations, by Reps. Jenise May and Cheri Gerou and Sen. Pat Steadman. The bill adjusts the amount of funds for certain intellectual and developmental disability services, and requires the Department of Health Care Policy and Financing to collect reports on the effectiveness and use of funds.

For a complete list of the governor’s 2014 legislative decisions, click here.

Colorado Court of Appeals: Purpose of Uniform Parentage Act is to Establish and Protect Parent-Child Relationship

The Colorado Court of Appeals issued its opinion in In re Parental Responsibilities of A.R.L., and Concerning Limberis on Thursday, December 5, 2013.

Biological Versus Presumptive Mother in Same-Sex Relationship—Uniform Parentage Act.

Elizabeth Limberis and Sabrina Havens began living together as a couple in 2000. Several years later, Havens unsuccessfully underwent one round of artificial insemination. Her friend, Marc Bolt, then agreed to inseminate her through sexual intercourse. Neither Havens nor Bolt revealed their sexual encounter to Limberis. Havens conceived and gave birth to A.R.L. in 2008. Limberis was present at the birth, and the child was given her last name. The birth certificate identifies Havens as the mother and does not name the father.

In 2011, the couple separated and Limberis filed a petition for parental responsibilities. Havens contested Limberis’s request for allocation of parental responsibilities and joined Bolt as a party. Bolt responded, describing himself as a sperm donor, and later filed a petition to relinquish his parental rights.

Limberis then petitioned for maternity under the Colorado Uniform Parentage Act (UPA), arguing that she was a presumed parent under the UPA. Havens moved to dismiss for failure to state a claim on which relief could be granted. Havens argued that because A.R.L. had a father and a mother, Limberis could not be a second mother and third parent under the UPA. The trial court agreed and dismissed Limberis’s petition. Following a hearing, the court allocated all parental responsibilities to Havens and granted Bolt’s petition to relinquish his parental rights.

The Court of Appeals found that the trial court erred in denying Limberis’s maternity petition on legal grounds without considering the merits. Limberis alleged facts in her petition that, if true, demonstrated she was an interested party. Therefore, she did not lack capacity under the UPA. The UPA’s purpose is to establish and protect the parent–child relationship. A person may be a presumed parent without being a biological or adoptive parent.

The Court rejected the argument that granting Limberis’s maternity petition would have left A.R.L. with three legal parents. First, Bolt was, at most, an alleged father. Second, no other statutory presumption applied to Bolt. Third, even if Bolt claimed a presumption as the father, that presumption is rebuttable. Fourth, if Bolt had filed a petition for parentage, it would have just been a competing petition, not the possibility of three parents. Finally, Bolt never claimed paternity.

The Court also rejected the argument that there is no authority in Colorado to support substituting a second legal mother for a child’s legal father. At most, the trial court had two competing presumptions to consider.

Finally, the Court addressed the underlying implicit premise of the trial court’s ruling—that a child may not have two legal mothers under the UPA. The Court found nothing in the UPA that would prohibit a child from having two same-sex parents. Accordingly, the order denying Limberis’s maternity petition was reversed. On remand, the trial court must determine whether Limberis is A.R.L.’s presumptive mother under the UPA’s holding out provision.

Summary and full case available here.

Protection Order Forms, Forms to Seal Juvenile Records Amended by State Judicial

In August and September 2013, the Colorado State Judicial Branch overhauled its Protection Order forms and issued revised forms in several different categories. State Judicial’s Probate forms were also amended in August, as previously reported by Legal Connection.

Forms are available for download here in PDF format by clicking the links below. State Judicial’s forms page has forms in PDF, Word, and Word template.

ADOPTION

  • JDF 506 – “Notice of Adoption Proceeding and Summons to Respond” (revised 8/13)

CRIMINAL

  • JDF 475 – “Order to Discontinue Sex Offender Registration” (revised 9/13)

DOMESTIC

  • JDF 1099 – “Instructions for Filing a Dissolution of Marriage or Legal Separation if there are No Children of This Marriage or Children are Emancipated” (revised 8/13)
  • JDF 1100 – “Instructions for Filing a Dissolution of Marriage or Legal Separation with Children of This Marriage” (revised 8/13)
  • JDF 1266 – “Instructions for Filing a Dissolution or Legal Separation of Civil Union if there are No Children of This Civil Union or Children are Emancipated” (revised 8/13)
  • JDF 1267 – “Instructions for Filing a Dissolution or Legal Separation of Civil Union with Children of This Civil Union” (revised 8/13)

FILING FEES

  • JDF 202 – “Finding and Order Concerning Inmate Motion Requesting Waiving Prepayment of Filing/Service Fees” (revised 8/13)

GARNISHMENTS

  • JDF 82 – “Instructions for Collecting a Judgment and Completing a Writ of Garnishment” (revised 8/13)
  • Form 26 – “Writ of Continuing Garnishment” (revised 8/13)
  • Form 29 – “Writ of Garnishment with Notice of Exemption and Pending Levy” (revised 8/13)
  • JDF 89 – “Notice to Garnishee, Application of Funds to Judgment, and Release of Funds to Judgment Creditor” (revised 8/13)

PROTECTION ORDERS

  • JDF 395 – “Instructions for Restrained Person – Motion to Modify/Dismiss Protection Order” (revised 8/13)
  • JDF 396 – “Instructions for Protected Person – Motion to Modify/Dismiss Protection Order” (revised 8/13)
  • JDF 400 – “Instructions for Obtaining a Civil Protection Order” (revised 8/13)
  • JDF 393 – “Verbal Emergency Protection Order” (revised 8/13)
  • JDF 394 – “Emergency Protection Order” (revised 8/13)
  • JDF 397 – “Motion to Modify or Dismiss Temporary or Permanent Protection Order” (revised 8/13)
  • JDF 398 – “Citation and Temporary Civil Protection Order” (revised 8/13)
  • JDF 399 – “Permanent Civil Protection Order” (revised 8/13)
  • JDF 401 – “Incident Checklist” (revised 8/13)
  • JDF 410 – “Order Modifying Protection Order” (revised 8/13)
  • JDF 413 – “Verified Motion for Contempt Citation” (revised 8/13)
  • JDF 440 – “Mandatory Protection Order” (revised 8/13)
  • JDF 442 – “Information Sheet for Registering a Protection Order” (revised 8/13)

SEAL MY CASE

  • JDF 301 – “Instructions to File an Expungement Juvenile “JD” Case or Criminal “CR” Case (revised 8/13)
  • JDF 302 – “Petition for Expungement of Records” (revised 8/13)
  • JDF 304 – “Order for Expungement of Records” (revised 8/13)

Click here for all of State Judicial’s JDF forms.

Civil Unions Forms Added to Domestic Relations Category by State Judicial

The Colorado State Judicial Branch issued several new forms in the Domestic Relations category in July to be used for dissolutions of civil unions, legal separations of civil unions, and issues related to children of civil unions. Additionally, many other forms were revised, including several of the instructions.

Click the links below to download the forms, or visit the State Judicial forms page. Forms are available here as Adobe PDF documents; Word versions are available on State Judicial’s page.

DOMESTIC

  • JDF 1099 – Instructions to File for Dissolution of Marriage or Legal Separation if There Are No Children of the Marriage (revised 7/13)
  • JDF 1100 – Instructions to File for Dissolution of Marriage or Legal Separation With Children of the Marriage (revised 7/13)
  • JDF 1215 – Evaluation of a Foreign Decree (revised 7/13)
  • JDF 1220 – Instructions to Register a Foreign Decree (revised 7/13)
  • JDF 1254 – Flowchart to Getting a Dissolution or Legal Separation of Civil Union with No Children (issued 7/13)
  • JDF 1255 – Flowchart to Getting a Dissolution or Legal Separation of Civil Union with Children (issued 7/13)
  • JDF 1264 – General Steps to Getting a Dissolution or Legal Separation of Civil Union with No Children (issued 7/13)
  • JDF 1265 – General Steps to Getting a Dissolution or Legal Separation of Civil Union with Children (issued 7/13)
  • JDF 1266 – Instructions for Filing a Dissolution or Legal Separation of Civil Union with No Children (issued 7/13)
  • JDF 1267 – Instructions for Filing a Dissolution or Legal Separation of Civil Union with Children (issued 7/13)
  • JDF 1268 – Instructions to File for a Declaration of Invalidity of Civil Union (Annulment) (issued 7/13)
  • JDF 1272 – Instructions to Convert Decree of Legal Separation of Civil Union to Decree of Dissolution of Civil Union (issued 7/13)
  • JDF 1325 – Instructions to Convert Degree of Legal Separation to Decree of Dissolution (revised 7/13)
  • JDF 1399 – Instructions to File Motion or Stipulation to Terminate Maintenance (revised 7/13)
  • JDF 1400 – Instructions to File Motion to Relocate Minor Children (revised 7/13)
  • JDF 1403I – Instructions to File Motion or Stipulation to Modify Child Support (revised 7/13)
  • JDF 1406I – Instructions to File Motion to Modify/Restrict Parenting Time (revised 7/13)
  • JDF 1411 – Instructions to File Motion or Stipulation to Modify Decision-Making Responsibility (revised 7/13)
  • JDF 1413I – Instructions for Petition for Allocation of Parental Responsibilities (revised 7/13)
  • JDF 1418I – Instructions to File Motion Concerning Parenting Time Disputes (revised 7/13)
  • JDF 1426 – Instructions to File Motion to Terminate Child Support (revised 7/13)
  • JDF 1524 – Instructions to File Motion to Modify or Set Aside Parentage (revised 7/13)
  • JDF 1600 – Instructions to File Declaration of Invalidity of Marriage (Annulment) (revised 7/13)
  • JDF 1700 – Instructions to File for Grandparent Visitation (revised 7/13)
  • JDF 1800 – Instructions for Filing Motions to Enforce Orders (revised 7/13)
  • JDF 1801 – Instructions for Completing an Income Assignment Based on Child Support Orders (revised 7/13)
  • Form 35.4 – Pattern Interrogatories – Domestic Relations (revised 7/13)
  • JDF 98 – Affidavit of Service (revised 7/13)
  • JDF 1000 – Case Information Sheet (revised 7/13)
  • JDF 1102 – Summons for Dissolution of Marriage or Legal Separation (revised 7/13)
  • JDF 1104 – Certificate of Compliance with C.R.C.P. 16.2(e) (revised 7/13)
  • JDF 1107 – Motion/Stipulation to Modify Petition (Marriage) (revised 7/13)
  • JDF 1111 – Sworn Financial Statement (revised 7/13)
  • JDF 1113 – Parenting Plan (revised 7/13)
  • JDF 1115 – Separation Agreement (Marriage) (revised 7/13)
  • JDF 1116 – Decree of Dissolution of Marriage or Legal Separation (revised 7/13)
  • JDF 1117 – Support Order (revised 7/13)
  • JDF 1120 – Notice of Domestic Relations Initial Status Conference (revised 7/13)
  • JDF 1121 – Notice of Domestic Relations Status Conference (revised 7/13)
  • JDF 1123 – Notice to Set Hearing (revised 7/13)
  • JDF 1124 – Notice of Hearing (revised 7/13)
  • JDF 1129 – Petitioner/Co-Petitioner/Respondent Pre-Trial Statement (revised 7/13)
  • JDF 1201 – Affidavit for Decree Without Appearance of the Parties (Marriage) (revised 7/13)
  • JDF 1250 – Petition for Dissolution of Civil Union or Legal Separation of Civil Union (issued 7/13)
  • JDF 1251 – Summons for Dissolution of Civil Union or Legal Separation of Civil Union (issued 7/13)
  • JDF 1252 – Response to Petition for Dissolution of Civil Union or Legal Separation of Civil Union (issued 7/13)
  • JDF 1253 – Motion/Stipulation to Modify Petition (Civil Union) (issued 7/13)
  • JDF 1256 – Separation Agreement (Civil Union) (issued 7/13)
  • JDF 1257 – Decree of Dissolution of Civil Union or Legal Separation of Civil Union (issued 7/13)
  • JDF 1258 – Affidavit for Decree Without Appearance of the Parties (Civil Union) (issued 7/13)
  • JDF 1259 – Motion to Convert Decree of Legal Separation of Civil Union to Decree of Dissolution of Civil Union (issued 7/13)
  • JDF 1260 – Order to Convert Decree of Legal Separation of Civil Union to Decree of Dissolution of Civil Union (issued 7/13)
  • JDF 1261 – Petition for Declaration of Invalidity of Civil Union (issued 7/13)
  • JDF 1262 – Summons for Declaration of Invalidity of Civil Union (issued 7/13)
  • JDF 1263 – Decree of Declaration of Invalidity of Civil Union (issued 7/13)
  • JDF 1270 – Response to Petition for Declaration of Invalidity of Marriage (issued 7/13)
  • JDF 1271 – Response to Petition for Declaration of Invalidity of Civil Union (issued 7/13)
  • JDF 1301 – Petitioner’s Verified Motion for Publication of Summons or Service by Certified Mail or Publication by Consolidated Notice (revised 7/13)
  • JDF 1302 – Order for Publication (revised 7/13)
  • JDF 1309 – Motion for Absentee Testimony Pursuant to C.R.C.P. 43 (revised 7/13)
  • JDF 1310 – Order for Absentee Testimony (revised 7/13)
  • JDF 1323 – Motion to Change Venue Pursuant to C.R.C.P. 98(c)(1) and 98(e) (revised 7/13)
  • JDF 1324 – Order to Change Venue Pursuant to C.R.C.P. 98(c)(1) and 98(e) (revised 7/13)
  • JDF 1401 – Motion to Modify or Terminate Maintenance (revised 7/13)
  • JDF 1402 – Order to Modify or Terminate Maintenance (revised 7/13)
  • JDF 1403 – Motion to Modify Child Support (revised 7/13)
  • JDF 1404 – Stipulation Regarding Child Support Modification (revised 7/13)
  • JDF 1405 – Order Regarding Child Support Modification (revised 7/13)
  • JDF 1406 – Motion to Modify/Restrict Parenting Time (revised 7/13)
  • JDF 1408 – Motion to Terminate Child Support (revised 7/13)
  • JDF 1409 – Order to Terminate Child Support (revised 7/13)
  • JDF 1413 – Petition for Allocation of Parental Responsibilities (revised 7/13)
  • JDF 1414 – Summons to Respond to Petition for Allocation of Parental Responsibilities (revised 7/13)
  • JDF 1422 – Order for Allocation of Parental Responsibilities (revised 7/13)
  • JDF 1602 – Summons for Declaration of Invalidity of Marriage (revised 7/13)
  • JDF 1603 – Decree of Declaration of Invalidity of Marriage (revised 7/13)
  • JDF 1804 – Income Withholding for Support (revised 7/13)
  • JDF 1805 – Notice of Pending Income Assignment (revised 7/13)
  • JDF 1809 – Notice to Employer to Deduct for Health Insurance (revised 7/13)
  • JDF 1813 – Verified Entry of Support Judgment (revised 7/13)
  • JDF 1814 – Motion to Clerk of Court to Transfer Title Pursuant to C.R.C.P. 70 (revised 7/13)
  • JDF 1815 – Order for Clerk of Court to Transfer Title Pursuant to C.R.C.P. 70 (revised 7/13)
  • JDF 1817 – Order to Issue Citation and Citation to Show Cause (revised 7/13)

Supreme Court Ruling on DOMA Raises More Questions Than it Answers for Colorado Families

By Ann Gushurst and Kristi Wells

On Wednesday, June 26, 2013, the Supreme Court struck down, in a 5-4 decision, Section 3 of the Federal Defense of Marriage Act, known as DOMA, which act defined and recognized marriages only as contracted between a man and a woman.  It did so on the basis that Section 3 of DOMA created a two tiered marriage system under Federal law, under which valid same-sex marriages were denied validity under Federal laws.

The Obama Administration released the following statement after the Supreme Court announced its ruling:

This ruling is a victory for couples who have long fought for equal treatment under the law; for children whose parents’ marriages will now be recognized, rightly, as legitimate; for families that, at long last, will get the respect and protection they deserve; and for friends and supporters who have wanted nothing more than to see their loved ones treated fairly and have worked hard to persuade their nation to change for the better.

This ruling will have interesting repercussions for states like Colorado, which has its own DOMA provision in the Colorado Constitution, although this ruling does not strictly challenge the constitutionality of DOMA in states that have state DOMA provisions.

In Colorado, we have the opposite problem to the DOMA case addressed by the Supreme Court in that Colorado recognizes complete state rights for same sex relationships as civil unions, but denies them the status of marriage.  By doing this, Colorado effectively denies those in same sex relationships from enjoying the benefits of marriage under federal statutes.  The question remains—is Colorado’s similar DOMA provision equally unconstitutional and how (and when) will that issue be addressed?

Until that issue is resolved, Colorado will be the Petri dish for issues that remain unaddressed by this Supreme Court decision.  For example, the Colorado statute recognizing civil unions specifically grants those in civil unions all of the rights of marriage, except that the right to file a joint income tax return is not permitted until federal law is changed to allow those who are not considered legally married to file joint income tax returns.

The Supreme Court’s decision regarding Section 3 of DOMA does nothing to require the federal government to recognize civil unions as equivalent to marriages.  Thus, couples in Colorado civil unions will continue to experience the exact disparate tax treatment that the Supreme Court struck down in its DOMA ruling.  And this disparate treatment will continue in Colorado until the Colorado Constitution is amended to repeal Colorado’s state DOMA provision, or until a federal statute is enacted which treats state-recognized civil unions the same as state-recognized marriages.

Further, the decision did nothing to address Section 2 of DOMA, which allows states to refuse to recognize same-sex marriages performed under the laws of other states.   While Section 2 still stands, Colorado can continue to refuse to recognize the same-sex marriages performed in other states, transforming the status of those couples who come to Colorado into civil unions.

This results in an anomaly for federal tax purposes.  The same-sex couple who marries in Massachusetts will be eligible to file a joint federal tax return as long as they continued to live in that state.  However, if the couple subsequently moves to Colorado and their marriage is no longer recognized, do they suddenly lose the right to file a joint federal tax return?

Perhaps most critical, this decision does not begin to unravel the complex issues that arise when same-sex couples have children.  As long as the non-biological parent formally adopts a child, these issues are fairly straightforward.  However, Colorado recognizes presumptions in favor of both a biological parent and a psychological parent in cases regarding allocation of parental responsibilities.  Thus, where a woman in a Colorado civil union becomes impregnated by a third party who is not involved in raising the child thereafter, Colorado Courts are still required to give weight to the biological connection between the child and the sperm donor when making decisions regarding who should have parenting time with that child.  However, a child born to a woman in a traditional marriage is presumed to be the child of that marriage.

For those fighting for equality, this decision is a powerful (yet mixed) step forward.  The other side of the equality coin is, of course, that with the ability to become legally married comes the need to legally end the marriage if a relationship ends.  As we move forward, divorce lawyers in Colorado now must begin the process of figuring out how to help these individuals deal with the questions left unanswered by today’s decision.

 

Ann Gushurst, Esq. has been practicing exclusively in family law for most of her law career. Her practice with Gutterman Griffiths PC in Littleton is currently a mixture of litigation, collaboration, and mediation. She is also responsible for the firm’s research and appellate work. Ms. Gushurst is the editor of the CBA Family Law Section newsletter, is on the section’s Executive Council, and is one of the three chairs of the Family Law Ethics Task Force.

Kristi Anderson Wells, Esq. has over 15 years of experience in the areas of taxation, benefits and executive compensation law which she brings to the practice of family law. Kristi’s practice focuses on the division of executive compensation, retirement assets and stock options in dissolution. In addition to her law degree, Kristi has a Master’s degree in Taxation (LL.M.) from the University of Washington School of Law.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

The Impact of Colorado’s Civil Unions Act on Estate Planning

EmilyBloedelBy Emily L. Bloedel

In the past twenty years, Colorado has gone from being dubbed the “hate state” for its discrimination against same-sex individuals (See Romer v. Evans, 517 U.S. 620 (1996)) to allowing civil unions. Beginning at midnight on May 1, 2013, same-sex couples will be able to enter into civil unions. A number of legal benefits, protections, and responsibilities that are granted to spouses under the law apply to parties to a civil union.

These changes include: the ability to inherit real or personal property from a party in a civil union under the probate code; priority for appointment as a conservator, guardian, or personal representative; survivor benefits; the ability to file a complaint about the care or treatment of a party in a civil union in a nursing home; rights related to declarations concerning the administration, withholding, or withdrawing of medical treatment, proxy decision-makers and surrogate decision-makers, CPR directives, or directives concerning medical orders for scope of treatment forms with respect to a party to a civil union; rights concerning the disposition of last remains of a party to a civil union; and the right to make decisions regarding anatomical gifts (C.R.S. 14-15-101 et seq).

The impact that the new Act will have on estate planning is not yet clear. The previous norm in Colorado for same-sex couples, designated beneficiary agreements, may no longer be necessary for an individual in a same-sex relationship to dispose of his or her property as desired and allow for his or her partner to make important medical decisions. The Act makes it clear that, for the most part, a “party to a civil union has the benefits, protections, and responsibilities under law as are granted to spouses” (C.R.S. 14-15-106 (1)).

The legislature has made it clear that for estate planning purposes, if a partner in a valid civil union dies intestate, his or her partner can now inherit via the intestacy statute. Although the full extent of the benefits to same-sex couples remains to be seen, the best way for any partner to a civil union to ensure the desired disposition of his or her property, or that the proper person handles decision-making when the partner is no longer able, remains, like any marriage, in informing loved ones of his or her wishes and creating valid estate planning documents.

Emily Bloedel joined Felser, P.C. in October 2012 as an associate attorney and can be reached on LinkedIn. She received her bachelor’s degree in Japanese Language and Literature from the University of Colorado and graduated from the University of Denver Sturm College of Law in 2012. She is licensed in Colorado. While in law school, Emily was a traveling oralist on the Willem C. Vis International Commercial Arbitration moot team and served on the board of editors of the Denver Journal of International Law and Policy. She also mediated small claims and FED cases through the Mediation-Arbitration Clinic. She enjoys playing the koto (a traditional Japanese instrument), reading, and traveling. She is a contributor to the DBA Young Lawyers blog, where this post originally appeared.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

CJD 98-03, Regarding Judicial Solemnization of Weddings, Amended for Inclusion of Civil Union Language

Hon. Michael Bender, Chief Justice of the Colorado Supreme Court, issued an update to CJD 98-03 in April. The updated Chief Justice Directive is effective May 1, 2013.

The Chief Justice Directive discusses payment for solemnization of marriages that are performed outside of business hours, and also emphasizes that members of the judiciary may not be compensated for services performed during normal business hours. It was amended to include language regarding certification of civil unions, and the amendment is effective May 1, 2013.

For the full text of the Chief Justice Directive, click here. For all Chief Justice Directives, click here.

HB 13-1222: Expanding Group of Family Members for whom FMLA Leave May Be Taken

On February 7, 2013, Rep. Cherylin Peniston and Sen. Jessie Ulibarri introduced HB 13-1222 – Concerning the Expansion of the Group of Family Members for whom Colorado Employees are Entitled to Take Leave from Work under the Federal “Family and Medical Leave Act of 1993.” This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under the federal “Family and Medical Leave Act” (FMLA), an employee is entitled to 12 work weeks of leave during a 12-month period to care for his or her spouse, child, or parent who has a serious health condition. In the case of a parent using FMLA leave to care for a child, the FMLA permits the leave only for the parent of a child who is under 18 years of age or is incapable of self-care because of a mental or physical disability. Current Colorado law is silent with regard to required family and medical leave, so Colorado employees are entitled to leave as specified in the FMLA.

The bill expands the group of family members for whom employees in Colorado may take FMLA leave when the family member has a serious health condition to include a person to whom the employee is related by blood, adoption, legal custody, marriage, or civil union, or with whom the employee resides and is in a committed relationship. As a result, an employee is permitted to use FMLA leave for a child, regardless of the age or dependency of the child, as well as for a sibling, partner in a civil union, grandparent, grandchild, or in-law.

An employee who is denied leave to care for a person in the expanded group of family members has the right to recover damages or equitable relief, as is currently the case for persons denied leave to care for a family member for whom leave is permitted under the FMLA. The bill cleared the House on Monday, March 25; it awaits a committee assignment in the Senate.

Since this summary, the bill was introduced in the Senate and Health & Human Services Committee.

e-Legislative Report: March 25, 2013

Michael Valdez, the Director of Legislative Relations for the Colorado Bar Association, published his weekly e-Legislative Report on Monday, March 25, 2013. In this edition, he noted that the CBA’s Legislative Policy Committee did not meet, and discussed important bills at the capitol, followed by summaries of 20 Bills of Interest (10 from each house).

At the Capitol

  • The Long Bill
    The Long Bill, a/k/a the Budget Bill, takes center stage at the Capitol for the next two weeks. This year the bill begins its journey in the Senate. When the budget is being considered by the House or the Senate, the budget discussion and process will delay action on most legislation while the budget has everyone’s attention.
  • On March 19, the House gave final approval (36-Yes, 28-No, with one excused) to CBA sponsored HB 13-1138. Concerning benefit corporations. The bill is assigned to the Business Labor and Technology Committee in the Senate. Action in the Senate will follow the completion of the budget bill in the Senate.
  • The legislation that creates a guideline formula for courts to consider in determining marital maintenance has passed both houses. The bill, HB 13-1058. Determination of Spousal Maintenance upon Divorce, is opposed by the CBA Family Law Section. The bill was amended on 2nd Reading in the Senate; the Senate gave final approval on Wednesday, March 20. On Thursday, March 21, the House rejected the Senate amendments and asked for a conference committee to work out the differences between the House and Senate versions of the bill.
  • The update for the next two bills is exactly the same: On Tuesday, March 19, both bills were approved on 3rd and final reading in the House on vote of 64-Yes, 0-No, and one excused. On Wednesday, March 20, both bills were introduced in the Senate and assigned to the Judiciary Committee:
    HB 13-1204. Uniform Premarital and Marital Agreements Act; and
    HB 13-1200. Uniform Deployed Parents Custody Visitation Act.
    See descriptions and CBA positions of both bills below.
  • Death Penalty: two bills.
  • The House Judiciary heard hours of testimony—pro and con—on HB 13-1264. Repeal of the Death Penalty, on Tuesday, March 19. Upon completion of the testimony, the bill was taken off the table and a final committee decision was delayed to a later date; the printed calendar shows the bill back on the calendar for Tuesday, March 26 at 1:30 p.m. for “action only.”
  • The House Local Government Committee heard hours of testimony—pro and con—on HB 1270. Refer Repeal Of Death Penalty To Citizen Vote, on Wednesday, March 20. Upon completion of the testimony, the bill was taken off the table and a final committee decision was delayed to a later date; the printed calendar does not have the bill listed.
  • On Thursday, March 21, the House Judiciary Committee gave its unanimous approval (9–0 with 2 excused) of the CBA-sponsored Probate Code Omnibus bill. The bill, SB 13-77. Concerning certain provisions of the Colorado Probate Code, is this year’s Trusts and Estates section continuing effort to seek out new amendments and boldly go where the Probate Code has never gone before. The bill next moves to the floor of the House for consideration on 2nd Reading.
  • Civil Unions signed into law.
    On Thursday, March 21, Gov. John Hickenlooper signed SB 13-11. Concerning authorization of civil unions at a packed bill-signing ceremony at History Colorado. The final text of the new act is available online.
  • Note: The vast majority of the act is effective on May 1, 2013.
  • To prepare practitioners for the new law, CBA CLE has planned a full day program on Saturday, May 1—the morning session is devoted to Family Law (Title 14 and Title 19 actions) and the afternoon session will have a Trust & Estate and Elder Law focus.