<![CDATA[Truhlar and Truhlar - Blog]]>Thu, 21 Sep 2017 01:29:35 -0700Weebly<![CDATA[Minimizing the Impact of Social Media on Legal Claims]]>Wed, 07 Jun 2017 16:23:02 GMThttp://truhlarandtruhlar.com/blog/minimizing-the-impact-of-social-media-on-legal-claimsSocial media has become an integral part of our daily lives and has forever changed the way we communicate. In the age of smartphones and the internet, we can now communicate instantly with friends and family, and interact with complete strangers online. Whether on Facebook, Twitter, or Instagram, it has become a norm to share the most intimate details of our private lives on social media. Unfortunately, nothing we say online is private, and seemingly innocuous posts could carry serious consequences.
Social media is quickly becoming a very powerful evidentiary tool in litigation and is considered a primary source of evidence. Attorneys always conduct discovery of the opposing party’s social media, and look for any evidence that could dispel their legal claims or defenses. Yet, very few people consider the impact of their online postings on pending legal matters. If you’re involved in a legal matter, you must be mindful of your use of social media and consider implementing some changes during the pendency of your case. Here are 10 tips that will help you protect yourself and avoid common pitfalls that could complicate your legal case.
  1. Have a discussion with your attorney about your use of social media. And follow your attorney’s advice. Your attorney may recommend a different approach based on the particular facts or circumstances of your case.
 
  1. Do not discuss your legal case. This may seem like common sense, but unfortunately it happens far too often. This includes anything discussed in confidentiality with your attorney (which would waive the attorney-client privilege), but also anyone involved and anything related to the issues of your case.
 
  1. Talk with your family about their use of social media. Explain to them the importance of confidentiality and of not discussing your claims on social media. This may also require a discussion on changing your family’s use of social media during the pendency of your case. This will help you avoid a blunder such as the one that occurred in Patrick Snay v. Gulliver Schools, Inc, an employment discrimination case out of Florida. The plaintiff’s daughter posted on Facebook regarding the parties’ settlement, which resulted in the loss to the plaintiff of the entire settlement amount. 
 
  1. Deactivate (suspend) your account. While this may perhaps seem like a drastic measure, it will help you resist the temptation of posting or commenting regarding matters that you might not even realize could have serious legal implications. It’s a temporary measure that could save you a lot of trouble. So shut it down until the dust settles.
 
  1. Restrict your privacy settings. Limit who can see the information on your page by changing the privacy settings on your account. You may also want to consider removing or blocking people who are not sympathetic to your situation, who make a habit of publically discussing private matters online, or who you think might share information with your spouse or employer. Remember that just because your account is set to “friends only” does not mean you are safe. One of your friends on Facebook or followers on Twitter or Instagram could access a post or picture and pass it along to someone who could use it against you in a pending legal matter.
 
  1. Change your password. This is always a good idea, even if you do not think your spouse knows your password, or you may have only checked your account once on your work computer. Get creative, and do not recycle an old password.
 
  1. Do not say negative things about the other party. If you are in a pending divorce or child custody case, you should not post any opinions or comments regarding your children or soon to be ex-spouse. Although they may be justified, do not make derogatory remarks, angry comments or negative rants about your spouse. Even if you do not make such postings, your friends might. Because of this, you also need to carefully monitor what they are posting on your page.
 
  1. Don’t accept friend requests from strangers.
 
  1. Be upfront with your attorney. If you’ve posted something on social media that could negatively impact your case, or know of potentially damaging information posted by someone else, please tell your attorney. The information will eventually come out and will need to be dealt with. The sooner your attorney knows, the sooner s/he can work out a strategy to minimize its impact.  
 
  1. Think twice before you post an update, tweet, or comment on someone’s page. Is it something you would feel comfortable being published on the front page of a newspaper? If not, you probably should not post it on social media. 
 
Taking these precautions and being smart about your use of social media will go a long way to prevent unnecessary complications down the road.
 
            – Catherine Peterson

 

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<![CDATA[HELP FOR THE SELF-REPRESENTED]]>Fri, 12 May 2017 14:27:33 GMThttp://truhlarandtruhlar.com/blog/help-for-the-self-represented            Self-represented parties (individuals who do not have attorneys and are representing themselves) can find assistance for filling out forms, strategy, and other details related to their dissolution of marriage (divorce) or their action for allocation of parental responsibilities (for parents who were not married to each other) at the free clinic at the Arapahoe County Courthouse, 7325 South Potomac Street, Centennial from 8:30 a.m. until noon on Fridays (every Friday).

            The allocation of parental responsibilities action is for the purpose of parties who were not married to come up with a Parenting Plan and determine the amount (and which parent will receive) child support.  Generally, if the parents are sharing the child’s time equally, but one parent makes more than the other parent, the higher-earning parent is likely to pay child support to the lower-earning parent.

            Actions upon which individuals may want to consider representing themselves include non-contested divorce, also called dissolution of marriage (parties may need help in filling out the various forms, such as the Sworn Financial Statement, the Petition, and also the Parenting Plan) and also allocation of parental responsibilities actions when the two parents agree on a Parenting Plan

            Also, parties who were not married to their child’s or children’s other parent may need help with the form for filing their action for allocation of parental responsibilities, as well as a Parenting Plan, child support forms, and the Sworn Financial Statement, a form that is difficult to fill out.  This help is available at the free clinic, which was founded by Doris Truhlar, one of the partners with Truhlar and Truhlar, LLP.

            Some people may be able to figure out the forms themselves, but need assistance when it comes to appearing in Court for a final hearing.  These parties may want to consider meeting with an attorney, to figure out strategies for dealing with their ex- or soon-to-be ex-wife or ex-husband, especially if there are children.   
 
            The forms are available (for a fee) at the Arapahoe County Courthouse, 7325 South Potomac Street, Centennial, CO 80012.

                                                                                                       -Doris Truhlar

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<![CDATA[SEPARATE PROPERTY]]>Wed, 03 May 2017 17:40:18 GMThttp://truhlarandtruhlar.com/blog/separate-property         In some dissolution of marriage (also called divorce) actions, there is a dispute over separate property.  The purpose of this article is to define “separate property” and explain its significance.
           
         Separate property is that which one party has received, by gift or otherwise.  The party holding or owning the separate property generally has continuously kept that property in her or his own separate name, without placing it in joint tenancy or in an account in both parties’ names.  Marital property, on the other hand, is property in which both spouses have an interest.  Such property is subject to distribution (division) in a dissolution of marriage (divorce) case.
           
       Parties can agree, through a pre-nuptial agreement (a contract made prior to marriage), to keep certain defined property “separate.”  The word “separate” means that it belongs only to the party in whose name the property exists.  It is not marital property.  The parties also can agree that appreciation (increase in value) of separate property is separate.  A property in joint tenancy (or, for example, a car in both parties’ names) is not separate.  It is joint.  If the parties obtained the property during the marriage, and the property was not kept in only one party’s separate name, then it is likely marital.
           
       Separate property can appreciate.  For example, a husband or wife may inherit a track of undeveloped land.  The land often increases in value.  Unless there is a written agreement to the contrary, the appreciation (increase) in the value of the property is marital.  Increases in real property, for example, may be substantial.
        
​           Parties are well-advised to have a written agreement about their separate property.

                                                                                           - Doris Truhlar

          
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<![CDATA[New Colorado Law Grants Employees Access to Personnel Files ]]>Sat, 17 Dec 2016 02:34:35 GMThttp://truhlarandtruhlar.com/blog/new-colorado-law-grants-employees-access-to-personnel-files   On June 10, 2016, Governor John W. Hickenlooper signed into law Colorado House Bill 16-1432. This act, which becomes effective January 1, 2017, provides current private sector employees the right to inspect and obtain a copy of any part of their personnel files at least once a year.  A former employee has the right to inspect his/her personnel file once after termination of employment.
 
 Under the act, employers may require that inspection of the personnel file take place at the employer’s place of business and in the presence of a designated employee. Employers may also require the employee or former employee to pay the reasonable cost of copying any part of their personnel file.
 
   This new law applies to all Colorado private employers except for financial institutions chartered and supervised under state or federal law, including banks, trust companies, savings institutions, and credit unions. The law does not apply to public sector employees who already have access to their personnel files under the Colorado Open Records Act.
 
  The act includes a provision defining the term “personnel file” as “the personnel records of an employee … that are used or have been used to determine the employee’s qualifications for employment, promotion, additional compensation, or employment termination or other disciplinary action.” The act specifies that a personnel file does not include documents or records:
 
  1. required by state or federal law to be maintained in a separate file;
  2. pertaining to confidential reports from the employee’s previous employer;
  3. pertaining to an active criminal investigation;
  4. pertaining to an active disciplinary investigation;
  5. pertaining to an active investigation by a regulatory agency; and
  6. identifying a person who made a confidential accusation, as determined by the employer, against the employee requesting the personnel file.
 
   The General Assembly’s stated purpose for this new law is to “foster an environment of open communication between employers and employees” and to “deter frivolous lawsuits against employers.” When the act takes effect, its provisions will be found at Colorado Revised Statutes §8-2-129. 
 
   Employees are encouraged to obtain a copy of their personnel file and to inspect it annually. An annual review will ensure that the employee has a complete and up-to-date copy of their file. It will give the employee the opportunity to verify that certain documents, such as kudos from colleagues, customers and clients, or performance evaluations by supervisors, are received by the employer and properly documented in the personnel file. It will also give employees notice if something is in their file that they did not expect to see there.
 

                                                                                                 -Catherine Peterson 
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<![CDATA[SELECTING A SCHOOL FOR THE CHILDREN WHEN THE PARENTS ARE DIVORCED]]>Mon, 07 Sep 2015 20:57:45 GMThttp://truhlarandtruhlar.com/blog/selecting-a-school-for-the-children-when-the-parents-are-divorced            When parties are divorced or never married, there may be a disagreement about what school should be attended by their children.

            It used to be that the children would attend a school that was in the neighborhood of the parent who had the children for parenting time a majority of the time.  In this day and age, however, more and more children are dividing their time equally between the parents, so there often isn’t a “primary residential parent.” 

            It makes some sense for parents who are divorcing, or who are getting orders in an Allocation of Parental Responsibilities case (for parents who were not married to each other), to make an agreement about resolving disputes concerning what schools their children will attend.  A Parenting Plan may state something along these lines:

                        If there is a disagreement about the school the children will attend, the parents       will attempt to resolve the disputes themselves.  If they cannot agree, then they will       attend mediation.  If there is no agreement in mediation, the parents may have a hearing       at which they ask the District Court to resolve the issue.  Prior to the resolution of the    issue by the District Court, the children shall remain in the school they have been        attending. 

            Switching schools often is a bad experience for many children.  They experience feelings of loss, have trouble making new friends and may become depressed and/or anxious.  Parents who have changed the children’s school should watch for symptoms of depression or anxiety on the part of their children.  Sometimes, it may make sense for one or both parents to drive the children back to their “old” school where they know the other children and the faculty.  When children are experiencing mental health symptoms (depression or anxiety), the parents may need to obtain counseling for the children.

            In some cases when parents ask the Court to resolve the school issue, the Court will appoint a Child and Family Investigator to investigate and make recommendations to the Judge about what school the child or children should attend.  The children’s wishes generally are taken into account, both by the CFI and by the Judge in selecting a school.

                                                                                                --Doris Truhlar


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<![CDATA[MAINTENANCE – THERE IS NOW A FORMULA]]>Mon, 13 Jul 2015 21:54:19 GMThttp://truhlarandtruhlar.com/blog/maintenance-there-is-now-a-formula
            There is now a formula upon which a Court is highly likely to base a maintenance award.  Maintenance also may be called alimony, and is a payment by one former spouse to the other former spouse for the support of the spouse receiving the money.

            Child support, in contrast, is for the support of children who are less than 19 years of age or, in some cases, children older than 19 years who are disabled.  Maintenance is taxed to the former spouse receiving the money.  Child support is taxed to the party paying the child support. 

            Although the payments pursuant to Colorado Revised Statutes § 14-10-114 are not required, in most cases the Court will award the amount of the calculation pursuant to this statute.  If the Court does not award the amount in the formula pursuant to this statute, the Court must make findings to support the amount it has awarded. 

            The formula under Colorado Revised Statutes § 14-10-114 applies to families with a combined annual gross income of $240,000 or less.  The formula is 40 percent of the higher wage earner’s yearly income minus 50 percent of the lower earner’s annual income.  In regard to duration, there is no guideline for marriages of less than three years, although the court has the discretion to make a maintenance award for marriages of less than three years.  At three years of marriage, the guideline duration is 31 percent of the length of the marriage.  When the parties have been married for eight years, the duration is 40 percent of the length of the marriage, or 3.2 years.

            The maintenance formula was adopted about two years ago.  In cases in which there is more annual gross income than $240,000, the amount of a maintenance award, and the length of the award, are discretionary with the Court. 

                                                                                    --Doris Truhlar

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<![CDATA[MARITAL AGREEMENTS – WHEN ARE THEY NEEDED?]]>Tue, 02 Jun 2015 17:57:58 GMThttp://truhlarandtruhlar.com/blog/marital-agreements-when-are-they-needed            Marital agreements are a contract between two people who are either already married or plan to be married.  They are legal both before the marriage takes place and after the parties are already married.

            Not everyone needs a marital agreement.  Generally, the following situations call for the drafting of a marital agreement:

            --There is a family business or trust in which one of the parties is involved, and the party who is involved in the business or is a beneficiary of a trust wants to make sure it is protected from a claim by a spouse.

            --One spouse has significant assets, while the other spouse has very little.  Often, the marital agreement will exempt the more affluent spouse from claims from the less affluent spouse.

            --One or both spouses have children from prior relationships and want to make sure that those children inherit, rather than having the wealth go to the new spouse. 

            The key to whether a marital agreement will be upheld is full disclosure.  The spouses or potential spouses must disclose all of their assets and the values of those assets.  It is also important that both spouses are represented by independent attorneys.  One attorney cannot represent both of the spouses or potential spouses.  Often, the more affluent spouse will pay for the attorney of the less affluent spouse.

            Generally, the marital agreement will cover what is to happen in the event of the death of one of the spouses or a divorce of the parties. 

                                                                                    --Doris Truhlar


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<![CDATA[MARITAL VERSUS SEPARATE PROPERTY]]>Thu, 16 Apr 2015 23:50:56 GMThttp://truhlarandtruhlar.com/blog/marital-versus-separate-property            In Colorado, a person may maintain her or his separate property in regard to any property held by a spouse prior to the marriage, simply by keeping it in her or his own separate name after marrying.  Once the property is placed in joint tenancy – that is, both husband’s name and wife’s name are on the deed, the property is no longer separate.  It becomes marital property. 

            If a married partner places a property that has been titled in her or his own separate name in the name of both parties, there is a presumption that the party transferring the property into joint tenancy intends to make a gift of one-half of the property to the spouse being added to the deed.

            Even when the property is kept in the name of a spouse separately, however, unless there is a marital agreement to the contrary, the appreciation on the property is marital in nature.  As an example, assume that a home worth $300,000 appreciates during a ten-year marriage to $400,000.  The $100,000 increase in value is marital in nature, even though the original $300,000 in value is not marital.

            Spouses who wish to keep property separate should consider having a marital agreement that spells out how they would like to have their property treated.  If the agreement is entered into prior to the marriage of the parties, then it is a pre-nuptial agreement.            


                                                                                                           --Doris Truhlar]]>
<![CDATA[TERMINATION OF PARENTAL RIGHTS]]>Mon, 30 Mar 2015 16:49:28 GMThttp://truhlarandtruhlar.com/blog/termination-of-parental-rights            In some states, a parent can voluntarily give up her or his rights to a child.  There are even some states in which a parent may relinquish the right to her or his child as part of a divorce.  Not so in Colorado.

            In Colorado, only the State of Colorado can bring an action for termination of parental rights.  A parent may not give up her or his rights to a child as part of a dissolution of marriage action (also called a divorce).  A parent may in Colorado, however, voluntarily give up her or his rights to a child in favor of a stepparent adoption.

            Sometimes, a parent becomes physically and emotionally separated from her or his child and, when the custodial parent brings an action for a stepparent adoption, the biological parent agrees to the adoption by the new stepfather or stepmother.  The adoption may include an agreement by the custodial relinquishing parent to give up any rights to back child support that has not been paid.

            The State of Colorado does not often attempt to terminate parents’ rights.  Termination is usually only a last resort in a dependency and neglect case (a proceeding in which there are allegations that a child has been neglected or abused or abandoned), when the parents have failed to comply with a treatment plan and there is no hope of successfully reuniting the children with the parents. 

            In a stepparent adoption, some judges require that the stepparent have been married to the biological parent for a year prior to finalizing the stepparent adoption. 

            In a few cases, the biological parent may contest the stepparent adoption.  If, however, the biological parent has not exercised parenting time and has not paid child support, often the stepparent adoption will be approved. 

                                                                                                --Doris Truhlar

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<![CDATA[Changes to the Wage Law in Colorado]]>Fri, 20 Mar 2015 22:41:04 GMThttp://truhlarandtruhlar.com/blog/changes-to-the-wage-law-in-colorado            There is a completely new process in Colorado that employees and former employees can use to pursue their unpaid wages of $7,500 or less without using a private attorney.  Wage laws have been in effect in Colorado for more than a hundred years.  Over the years these wage laws have taken various forms and have been amended several times.  The most recent change to Colorado wage law was passed and signed into law in May 2014.  The change titled the Wage Protection Act was signed by Governor Hickenlooper on May 29, 2014, but the changes did not go into effect until January 1, 2015.

            The Wage Protection Act makes several significant changes to Colorado wage law and one of the biggest changes is the addition of an administrative process handled by the Colorado Department of Labor and Employment (“CDLE”).  For wages that were earned starting January 1, 2015, employees can now submit wage claims for $7,500 or less directly to the CDLE rather than having to pursue those claims on their own.  Wage claims for more than $7,500 are not eligible for the new CDLE process. 

            Employees or former employees can contact the CDLE regarding their unpaid wages for $7,500 or less and the CDLE will have the employee fill out a complaint form.  The CDLE then sends to the employer a Notice of Complaint regarding the unpaid wages.  The Employer must respond to the CDLE within 14 days or can be fined $250 in addition to the penalties the employee can receive for unpaid wages. 

            Ultimately, if the employer refuses to pay the wages and the CDLE determines that the wages are owed, the CDLE will issue a Determination that includes a Citation and Notice of Assessment. The Citation, Notice of Assessment or Order from the CDLE can be filed in any court and be collected on in the same way that a judgment of the court would be collected.

            The CDLE process is a brand new process, so there is still some uncertainty exactly how successful it will be, but if done well it could be a great way for employees with unpaid wages of $7,500 or less to be paid without needing to find a private attorney to represent them. 

            Employees with unpaid wages of $7,500 or less do not have to use the new administrative process at the CDLE.  All employees still have the option of pursuing their unpaid wages by filing a lawsuit against the employer, so long as the lawsuit is filed within the appropriate statute of limitations.  

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