Divorce Matters Attorney David Kalisek on Channel 7!
Divorce Matters attorney David Kalisek sits down with Mile High Living to discuss spousal maintenance and child support in Colorado, how getting a raise or losing your job can change those, and how our Divorce Matters Maintenance and Child Support Calculator App can help you figure out what yours might be.
What Happens To Your Debt When You Get Divorced?
Whether it’s a mortgage, car payment, student loans, or credit cards, almost everyone has some kind of financial debt. When a couple gets divorced, their marital debt, just like their assets, must be divided between the two parties.

What is marital debt?
When it comes to married couples, there are two categories of debt: marital debt and personal debt.

Personal debt is debt one party incurred prior to the marriage. In the case of divorce, personal debt goes back to the original owner.

Marital debt is debt incurred by a couple during the course of their marriage. Generally, debt acquired during marriage is considered marital property even if it was obtained in the name of only one spouse. There are many reasons a couple might decide to take out debt in only one of their names – for instance, one party may have better credit than the other. Therefore, this debt is considered marital debt because it is presumed to benefit the whole couple or family unit.

How is debt divided upon divorce?
A court will try to divide a couple’s marital debt equitably, which does not necessarily mean equally. Courts will look at the surrounding financial circumstances to allocate debt (and assets) between the two parties. The circumstances considered may include (among other things):

• Why the debt was incurred,
• When in the marriage the debt was incurred,
• The length of the marriage,
• Each party’s ability (or inability) to pay the debt, and/or
• The contributions of the parties during the marriage.

If one party is granted an asset in divorce (for example, a car or house), that party is generally responsible for the debt associated with that asset (the car payment or mortgage).

Courts can divide all debt accrued up to the date a divorce is final. But what about debt accrued between the time a couple separates and when their divorce is finalized? What if one party has been recklessly or secretly spending – for instance, spending money on an affair or racking up debt to harm or get back at the other party? In those cases, there is likely an argument to the court that the debt accrued by one party after separation or in anticipation of divorce should belong solely to the party that accrued it. The court should consider those circumstances in equitably dividing the debt.

Once the debt is divided, you should take steps to ensure that only the responsible party’s name remains on the debt. If the debt remains in both names and your former spouse fails to pay, you may be see negative consequences like a hit to your credit score or calls to creditors. Retitling the debt in the name of each individual will help protect you if your former spouse fails to pay the debt he or she has been assigned.

What about student loans?
One particularly tricky category of debt is student loans. By their nature, student loans belong to one party – the party receiving the education. However, the benefit of receiving the education (like a higher salary) likely benefitted the whole couple or family.

Generally, student loans incurred during marriage are considered marital property, but arguments can be made that student loan debt should be carried solely by the student-borrower. In particular, courts may look at the length of the marriage, when the education was undertaken, and the contributions of each party.

If you think you may need to talk to an attorney about your situation, you can visit our website and contact us here , or you can call us at 720-542-6142.
What Is Contempt of Court and How Does It Affect Me?
Contempt of court is failure to comply with the authority of the court.
There are two categories of contempt: direct and indirect. Direct contempt involves behavior in the courtroom – for instance, refusing to answer a judge’s questions. Indirect contempt involves behavior outside of the courtroom, such as failing to comply with a court order.

When it comes to family law and divorce proceedings, the most common area for contempt of court is child support. Specifically, a party may be in contempt of court when he or she fails to pay child support as ordered by the court. Because child support payments are due monthly, there are many opportunities for noncompliance. Other areas where contempt concerns may arise include alimony, child custody, and property separation orders.

What do I do if I think my ex is in contempt of court?
If you believe your ex is in contempt, you (or your attorney) may file a Motion for Citation for Contempt of Court stating that (1) a valid order of the court was in place, (2) the offending party knew about the order, (3) the offending party had the ability to comply with the order, and (4) the offending party failed to comply with the order.

You may request that the court find the other party in either (or both) remedial contempt or punitive contempt. Remedial contempt is designed to encourage the offending party to comply. Under remedial contempt, you must show, by a preponderance of the evidence, that the four elements outlined above are satisfied. “By a preponderance of the evidence” means it is “more likely than not” the elements are satisfied. You may request a fine or imprisonment be imposed on the other party until he or she complies with the order, as well as payment your attorney’s fees incurred in connection with the contempt proceeding.

Punitive contempt, on the other hand, is meant to punish the offending party for not complying with the order. Instead of simply showing that the offending party didn’t comply, you must show that the other party willfully defied the order. Again, you may request a fine or a fixed term of imprisonment be imposed on the other party. The burden of proving punitive contempt is much higher than for remedial contempt: in addition to proving the other elements, you must prove beyond a reasonable doubt that the failure to comply with the order was willful.

What do I do if I have been charged with contempt of court?
If you are charged with contempt, it is in your best interest to make payments or otherwise comply with the order, if you can, as soon as possible. The court will schedule a hearing on the Motion for Citation for Contempt of Court, which you must attend. If you do not, the court may issue a bench warrant for your arrest. At the hearing, you will be able to defend against the citation and explain why you should not be held in contempt.

The court will consider the circumstances surrounding your failure to comply with an order in determining whether to hold you in contempt. Failure to comply might not automatically result in a contempt citation. For instance, if you have lost your job, the court may find that you are unable to pay the ordered child support and therefore determine you are not in contempt.

If you are found to be in contempt, you may have to pay a fine, be subjected to jail time, and/or have to pay the other party’s attorney fees.

Contempt proceedings take time. Generally, it takes two to four months to resolve a contempt citation, but it can take longer. Often, failure to comply with an order can be resolved through negotiations by your attorneys, rather than through the court. If you need help with your situation, call us at 720-463-1232 or contact us here to speak with one of our attorneys.
This newsletter is for informational purposes only. Nothing in this newsletter should be taken as legal advice and receiving this newsletter does not constitute an attorney client relationship.