Legal Resources for Various Areas of Law | OCB Law

Annual Budget Meetings for HOA BOards

Mon, 13 Jan 2025 02:00:00 GMT

A Guide for Colorado Community Associations

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Can I Protect My Child's Inheritance From Their Spouse?

brandon@ocblawgroup.com (Brandon Campbell) — Wed, 01 Jan 2025 13:15:01 GMT

Estate Protections Series: Part 11

After years of working, saving, and building an inheritance for your children, you don't want a child losing half of it to a divorcing spouse. “The in-laws” is often a topic of concern for clients in estate planning. The big question, of course, is whether you can protect your child's inheritance, even from divorce. The answer is a resounding YES, but getting to yes requires actual planning.

Divorce And The Division Of Inheritance

EVERY state has a different set of divorce laws, including how to divide inheritance you received from a family member. In some states, 100% of the inheritance is untouchable by a divorcing spouse. In others, a court can access and divide it.

In Colorado, inheritance you leave your child is considered “separate property” in a divorce. But it only remains “separate” if your child keeps it in their sole name and does not put it in their spouse's name too. A single mistake, even if corrected, causes the inheritance to become "marital" and subject to division. A common example is taking inherited money and putting it in a joint bank account with a spouse. Even of those funds are removed to a different account, that deposit created "marital" property. Colorado law further states that even if you keep the inheritance separate, any increase in value of that property is marital. Consider if you inherit a house worth $500,000. If you hold onto that property during the marriage, and it is worth $750,000 at the time of divorce, the first $500,000 is still separate. Unfortunately, the remaining $250,000 is now marital and can be divided by the court. These rules are only Colorado - the state where your child might divorce is who controls. Depending on that state, the rules may be much better or much worse.

How to prevent division of inheritance to in-laws

While a Last Will can direct where your property passes after you die, it does nothing to protect those assets. Similarly, leaving your child inheritance by beneficiary designation gives them no protection. This is because that property becomes your child’s, in their sole name, so it is up for grabs in a divorce.

The best solution available for protection is a Trust. You can find more information in an earlier series installment here . In a Trust, you create an entity that holds your estate, which continues owning, managing, and PROTECTING the property for up to decades. By keeping inheritance out of your child’s direct ownership, your child can never commingle or gift it to their spouse. A trust gives you other options too, including requiring that your child and their spouse sign a marital agreement before receiving any inheritance. You can also install a third party as Trustee to manage the inheritance, restrict how your child can use it, etc.

Most importantly, a Trust can prevent your in-laws from receiving the inheritance instead of grandchildren. In Colorado, if your child receives your inheritance and then dies, some or all of it goes to their spouse first. Only after the spouse’s death might it pass to your grandchildren, but it might not in a blended family. With a strong Trust plan, you are in control. You can take whatever steps you feel necessary to make sure inheritance flows where (and how) you want.

How can an estate attorney help?

Issues involving in-laws and divorce are complicated and require intentional, specific planning. You can and should protect inheritance you're leaving, but only through estate planning. The attorneys at Opfer | Campbell | Beck P.C. specialize in estate planning and family law, so they have the expertise to make your plans work. Contact our offices today for a no-cost, 60-minute consultation!

How HOA Boards Can Hold Successful Meetings

Fri, 27 Dec 2024 17:45:00 GMT

Tips for Colorado Community Associations

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I'm Not Wealthy, So Why Do I Need An Estate Plan?

brandon@ocblawgroup.com (Brandon Campbell) — Thu, 19 Dec 2024 23:50:54 GMT

Estate Protections Series: Part 10

A common statement you are likely to hear as an estate planning attorney: I'm not “wealthy,” so why do I need an estate plan? This is a loaded question, first because everyone’s definition of “wealthy” varies. But more important, too many people believe (incorrectly) estate planning is only about wealth preservation. We need to change our perspective and recognize that we all have a lot to lose. Planning works to fill those gaps for us.

What goes into an estate plan?

Upon reaching age 18, every person should have some form of a plan, regardless of health or wealth. An “estate plan” is simply a set of documents that address contingencies. Every person needs a baseline set of documents. These include medical and financial Powers of Attorney, certain medical directives, and a Last Will. Some people require more complicated structures like trusts, depending on their families and their assets. What's important is that you have the structures YOU need, based on your situation.

Why do I need planning?

So, even without being "wealthy," why do you need planning? First, while you are alive, you might find yourself unable to make decisions. This might be from an accident or medical issue such as dementia. Without planning, the next person to take care of you (even your spouse!) needs to take over your life. Unfortunately, our legal system requires someone to go through probate and become a "Guardian" or "Conservator" if you do not have Powers of Attorney. For medical issues, nobody can speak with your doctors or hospital if you have an accident (due to HIPAA). But in planning, we create a HIPAA authorization to give your loved ones access. Then of course, when you pass away, assets may end up in probate, which most people want to avoid. If you have minor children, a major issue would be who cares for those children until they become adults. Without planning, solving these issues can take months or longer, cost thousands of dollars, and cause a lot of frustration.

Estate planning is only partly focused on assets. Most decisions instead concern who should care for you and your family when you cannot. As a result, when most people do planning, they realize that their “wealth” is in those around them, rather than how much money is in the bank. And there is no amount of wealth, too little or too great, which should cause a person to avoid planning for the future.

How can an Estate Attorney help?

It is important to speak with a qualified, experienced estate attorney to discuss your own situation, especially if you do not have any planning. The attorneys at Opfer | Campbell | Beck P.C. have a great volume of experience with planning and probate. Contact our offices today for a no-cost, no-obligation, 60-minute consultation!

Avoiding Probate: "Funding" Your Estate Plan

brandon@ocblawgroup.com (Brandon Campbell) — Sat, 30 Nov 2024 20:30:00 GMT

Estate Protections Series: Part 9

“I created some estate planning documents, so I’m done now, right?” NO, but you are close!

Throughout our Estate Protections Series, we outlined all the documents involved in estate planning. But, fundamentally, what is probate and how do you avoid it? Referred to “Funding" your plan, there are two major ways to avoid probate after passing away. When completed, this results in a fast, simple, and conflict-free transition.

What is probate?

As discussed in prior blogs, a person can trigger probate while they are alive if they become “incapacitated” and do not have medical directives or Powers of Attorney. By having those documents, they avoid “protective proceedings” called Guardianships and Conservatorships. But what about when you die?

In its most basic form, probate after death happens because assets becomes stuck, and your loved ones need to unstick them. Take, for example, a married couple who owns a house together. If one person passes away, what happens? In most situations, the spouse takes over the title because they are already on it as a joint owner. The property avoided probate because the name was already there. But what about when the second spouse passes away? If nobody else is an owner, what happens to the title?

This is the most common situation causing probate. In such example, the only person who could have sold the house, or given it away, just passed away. Now, someone needs legal authority to transfer that title. That might come from a Will you left saying who receives the house, or even without one your state's laws will direct what happens to it. This person is the Executor / Personal Representative. Their legal authority comes from the local probate court, who empowers them to dispose of the property after proceedings begin. It may sound simple, but this process can involve substantial delays, expenses, and conflicts that you could have avoided

So, how do you AVOID probate?

Now that you understand probate, the process to avoid it is rather simple. “Funding” is the act of taking your assets (e.g. the house deed) and retitling them to avoid becoming stuck in probate. There are two common ways available:

Beneficiary Designations: On nearly every asset, a person can schedule a transfer to someone when they die, as a "beneficiary designation." This involves a legal document for each specific asset, and then activating it later with a death certificate. For example, on the house described earlier, the married couple could record a “Beneficiary Deed.” It is a legal, recorded deed that designates when they both die, ownership then transfers to specific named people. After both owners pass, the beneficiaries record death certificates with the county, and then soon they become the new owners. The house avoids probate because the beneficiary is already listed on the title. This approach works for almost every asset!

Importantly, there are some limitations to using beneficiary designation. First, you cannot leave most types of assets to a someone younger than 18, because they do not have the legal ability to manage assets. They are considered "incapacitated" because of their age. Second, you should not attempt list a person who is disabled or special needs as a beneficiary, because you might cause them to lose important disability benefits. And lastly, beneficiary designations do not allow you to control or protect the inheritance you leave. If you want to spread out inheritance over time, protect it from spouses, protect it from drug and alcohol use, and so on, beneficiary designations do not work.

Trusts: As discussed in Part 7 of our Estate Protections Series, the other method to avoid probate is by a Trust, most commonly the Revocable Living Trust. When you create a trust, you then retitle (fund) your assets inside it. For example, instead of using a Beneficiary Deed, you sign a deed to move your property into the trust right now. This avoids probate because, technically, you no longer own that house, but remember that you still own the trust. So, you can still enjoy and control all your property while also making sure it avoids probate. Importantly, trusts do not have the same limitations as described above for beneficiary designations.

How can an estate attorney help?

Creating estate documents is only the first step of planning. Without funding, you will likely end up in probate. A knowledgeable estate attorney should help you prepare documents AND retitle assets. Afterwards, your attorney should maintain a relationship with you throughout the years so that as you acquire new assets, you structure them to avoid probate. Funding is critical and cannot be ignored. Regardless of how you plan to avoid probate, ensure it is handled correctly. At Opfer | Campbell | Beck P.C., we provide no-cost consultations to help you understand your funding needs, and provide an action plan to help you avoid probate permanently. Contact our office today for scheduling!

Conflicts With Your HOA: A Guide for Homeowners

Mon, 18 Nov 2024 00:15:00 GMT

Homeowners’ Associations (HOAs) play a significant role in maintaining the quality and uniformity of communities across Colorado. While they can provide benefits like maintaining common areas and enforcing community standards, conflicts between homeowners and HOAs are not uncommon. Whether it’s a disagreement over a rule, a fine, or a request for a property modification, it’s important to know how to navigate these conflicts effectively. Here’s a step-by-step guide on what you should do if you find yourself at odds with your HOA in Colorado.

Review the Governing Documents

The first step in addressing a conflict with your HOA is to thoroughly review the governing documents. These documents typically include the Declaration of Covenants, Conditions, and Restrictions (CC&Rs), bylaws, architectural guidelines, and any rules, policies, or guidelines set by the HOA. Understanding the specific provisions that apply to your situation is crucial. These documents will outline the rights and responsibilities of both homeowners and the HOA, as well as the procedures for resolving disputes. Remember, your governing documents are essentially a contract between you, your neighbors, and the association.

Document the Issue

It’s important to keep a detailed record of the conflict. This includes saving copies of any communications with the HOA, taking photographs if the issue involves your property, and noting any relevant dates and interactions. Having a well-documented case will be invaluable if you need to escalate the matter or seek legal advice.

Documentation will also often include requests for items from the association. Homeowners are entitled to have many pieces of information and documents made available to them under the Colorado Common Interest Ownership Act (CCIOA) including contact information for the board members as well as certain written communications and so many more. A complete list can be found in CCIOA C.R.S. § 38-33.3-317 and a request can be made pursuant to C.R.S. § 38-33.30317(2)(a).

Communicate with the HOA Board

Before taking any formal action, try to resolve the issue directly by communicating with the HOA board. This could involve writing a letter or requesting a meeting to discuss your concerns. Be clear and concise in your communication, and refer to the specific provisions in the governing documents that support your position. Often, open and respectful communication can resolve issues before they escalate.

Attend HOA Meetings

HOA meetings are an opportunity for homeowners to voice their concerns and hear the board’s perspective. If you’re facing a conflict, attending these meetings can be beneficial. Not only can you present your case, but you’ll also be able to gain insight into the board’s decision-making process and see if other homeowners share your concerns.

Request a Hearing

If your issue remains unresolved, you may have the right to request a formal hearing with the HOA board. This process is typically outlined in the governing documents. A hearing allows you to present your case in a more structured setting, and the board is required to consider your arguments before making a final decision.

Seek Mediation

In Colorado, many HOA conflicts can be resolved through mediation, which is often quicker and less costly than going to court. Mediation involves a neutral third party who helps facilitate a resolution between you and the HOA. This option is particularly useful for disputes that involve interpretation of rules or where both parties are willing to negotiate a compromise. At Opfer | Campbell | Beck P.C. we offer HOA-specific mediation services.

File a Petition for a Special Meeting

Under CCIOA and the Colorado Nonprofit Corporations Act, a homeowner or group of homeowners may file a petition with 20% of all homeowners having signed the petition requesting a special meeting of the members to address a specific issue or set of issues. This is not meant to be used for one homeowner to deal with one issue, but rather to force the board to take up an issue and hold a meeting about an issue that is pervasive or common on many homeowners. Before knocking on doors and asking for signatures, it is wise to attempt to simply ask the board to hold a meeting or put the topic on the agenda for the next meeting.

If you or your fellow homeowners are considering pursuing a Special Meeting, we highly encourage you to talk to someone at our firm or at another experienced HOA firm as there are very specific requirements and processes that must be followed. Navigating this can be tricky, but we have the experience to help you.

Understand Your Legal Rights

Colorado has specific laws that govern HOAs, including the Colorado Common Interest Ownership Act (CCIOA) as was mentioned above. This law provides protections for homeowners and outlines the obligations of HOAs. Understanding your legal rights under CCIOA can help you determine whether the HOA is acting within its authority. If you believe the HOA is violating your rights or not following the proper procedures, you may have grounds for legal action. We offer free consultations do discuss your options.

Consider Legal Action as a Last Resort

If all other avenues fail, you may need to consider legal action. This could involve filing a lawsuit against the HOA seeking a declaratory judgment, for violation of CCIOA, or other legal claims. However, litigation should be considered a last resort, as it can be time-consuming and costly. Before pursuing this route, it’s advisable to consult with an attorney who specializes in HOA disputes in Colorado.

Consult with a Specialized HOA Attorney

Given the complexities of HOA laws and the potential for conflicts to escalate, consulting with an attorney who specializes in HOA issues can be a wise move. A specialized attorney can help you understand your rights, navigate the HOA’s governing documents, and represent your interests effectively. Whether you’re dealing with an unfair fine, a denied architectural request, or any other HOA-related issue, legal guidance can be crucial in achieving a favorable outcome.

Conclusion

Conflicts with your HOA can be stressful, but they don’t have to lead to prolonged disputes or costly litigation. By understanding your rights, communicating effectively, and following the proper procedures, you can resolve most conflicts in a way that preserves your relationship with the HOA and maintains the quality of your community. If you find yourself in a difficult situation, don’t hesitate to call or email us at Opfer | Campbell | Beck P.C. to schedule your free consultation. The right guidance can make all the difference in protecting your property and your rights as a homeowner. Together, we can help you bring the “community” back to the practice community association law.

How to Speak With Loved Ones About Estate Planning

brandon@ocblawgroup.com (Brandon Campbell) — Thu, 07 Nov 2024 19:28:17 GMT

Estate Plan Protections Series: Part 8

Every family and relationship is different. When it comes to speaking about the important issues like finances, sickness, etc., some people are “open books” while others are not. Regardless of someone’s willingness to speak about these issues, it is critical they are addressed. When - not "if" - an accident, illness, or death strikes, the last thing anyone should have to do is investigate your life.

The following is a breakdown of topics you should discuss with loved ones. You can use this resource to provide your own information to others, or to information for people you might assist later:

In Case of Emergency

The most fundamental information to know is what to do and who to call in a sudden emergency. As a basic measure, you should ensure key people know the following information:

What family members and friends should they call if there is an emergency?
What are their emails and/or phone numbers?
What doctors should they call?
What professionals (e.g. attorney, financial advisor) should they call?
Who will provide care for your children (if applicable), and are there any special medical or other issues to know?
Who will care for your pets, and are there any special needs or medical issues?
Where do you keep your social security card, identification, and insurance cards?

Medical Information

Medical records are some of the most safeguarded data in the United States. Under the Health Information Portability and Accountability Act (HIPAA), doctors and medical facilities cannot communicate any information to someone other than the person treated, without prior authorization. Unfortunately, this applies to everyone, including spouses, parents, siblings, friends, etc. unless they are a Medical Power of Attorney or a court-appointed Guardian. The best solution is to create a standalone HIPAA Authorization and name all the people you want to grant this access. Then, to avoid delays, make sure the key people on that list have some knowledge about important health matters. The following are important questions to discuss with loved ones (both for your care and theirs, if you plan to take any role / responsibility):

Who are your physicians, or if none, what hospital do you go to when there is a problem?
Who is your health insurance provider, and where are your insurance cards?
Do you have any additional insurance coverage, such as dental, vision, or supplemental (disability, long-term care)? If so, where?
What are your allergies (food, drug, etc.)?
Where do you keep your prescriptions? Is there a specific pharmacy you use?
Do you have any legal paperwork in place for medical affairs?
Medical Power of Attorney
HIPAA Authorization
Living Will (Advance Medical Directive)
“Do Not Resuscitate” (DNR) / Medical Orders for Scope of Treatment (MOST)
Does any attorney or doctor have your legal paperwork on file?
What are your wishes regarding organ donation?
What are your wishes regarding life support?
When you ultimately pass away, do you want cremation, burial, or something else (e.g. donation)? Have you prepaid for any services?

Financial Information

Health issues are difficult enough to discuss, but discussing personal finances can be even harder. However, it is just as important to know this information. If there is an accident or death, you cannot risk a missed payment, taxes not being filed, etc. To prepare, here are the most important questions to resolve:

Where do you keep spare keys to your home, vehicle, etc.?
Do you have a safe or a safe deposit box? If so, where and how do you access it?
Where do you keep estate planning documents (Powers of Attorney, Medical Directives, etc.)?
Do you receive paper or electronic statements for your accounts and policies?
What banks do you use?
Who manages your investments and life insurance?
Where are your mortgage and other debts (auto loan, credit cards, etc.)?
Do you have an attorney, CPA, and/or financial advisor?
If there is a business, who manages everything for it?
Where do you keep the password to your computer?
Where do you keep information about online accounts (email, Facebook, bank accounts, etc.)?

It is difficult to discuss personal finances, even with the closest loved ones, but you can make the situation more comfortable by explaining that you are trying to make everything easier in an emergency. When it comes to finances, you do not need to know how much money or debt someone has, and you do not need to know who receives what as inheritance. You simply need to know where to find everything when the time comes. As with medical affairs, if someone is not willing to disclose their issues, it is just as valuable to know where to find that information when the time comes.

How can an attorney help?

At Opfer | Campbell | Beck P.C., we specialize in assisting you with future planning. We take extra effort to help our clients understand and discuss this information with others. As a useful tool, we created a worksheet that every person should fill out and store somewhere, which loved ones can access in an emergency. You can download the form HERE . At any time, do not hesitate to schedule a no-cost consultation with our attorneys regarding your personal estate planning needs.

Managing Short-Term Rentals

Mon, 28 Oct 2024 17:30:01 GMT

A Guide for Colorado Homeowner Associations

Short-term rentals (STRs) have become increasingly popular across Colorado, offering homeowners the opportunity to generate extra income by renting out their properties for short stays. For example, VRBO has 18,835 houses and 19,565 condos available to rent at the time of the writing of this article. However, the rise of STRs has also brought challenges for Homeowners' Associations (HOAs), which must balance the interests of homeowners who wish to rent their properties with those of residents who are concerned about the impact of STRs on their community. Here’s a guide for Colorado HOAs on how to effectively manage short-term rentals.

Understand the Legal Landscape

Before implementing or enforcing any rules regarding short-term rentals, it’s important for HOAs to understand the legal framework that governs these rentals in Colorado:

· Local Regulations: Many cities and counties in Colorado have enacted ordinances that regulate short-term rentals. These regulations may include requirements for permits, limits on the number of days a property can be rented, occupancy limits, and safety standards. HOAs must ensure that any rules they adopt are consistent with local laws.

· Colorado Common Interest Ownership Act (CCIOA): CCIOA provides the legal foundation for HOA governance in Colorado. While it doesn’t specifically address short-term rentals, it does require that any restrictions or rules imposed by the HOA be reasonable and clearly outlined in the governing documents.

· Case Law: Colorado courts have addressed disputes over short-term rentals in HOA communities. Generally, courts have upheld restrictions on STRs if they are clearly stated in the governing documents and are adopted in accordance with the association’s procedures. Many HOAs seek try to regulate and prohibit STRs as “commercial activity.” Although this was a good argument, in 2015 the Colorado Court of Appeals in Houston v. Wilson Mesa Ranch Homeowners Association held that STRs are still “residential” and are not considered “commercial activity.”

Review and Update Governing Documents

For an HOA to regulate or restrict short-term rentals, it must have clear authority to do so, which should be outlined in its governing documents, such as the Declaration of Covenants, Conditions, and Restrictions (CC&Rs), bylaws, and rules and regulations. Specifically, an HOA’s declaration must allow for the preclusion or regulation of STRs. If the declaration doesn’t allow for STRs, an HOA probably can’t regulate them. If your HOA is considering implementing new rules or restrictions, follow these steps:

· Conduct a Legal Review: Work with an attorney who specializes in HOA law to review your current governing documents and ensure that any proposed changes are legally sound and enforceable.

· Amend the CC&Rs if Necessary: If the CC&Rs do not currently address short-term rentals, your HOA may need to amend them. This typically requires a vote of the homeowners, with a certain percentage required for approval, as outlined in the existing CC&Rs. If an HOA is a CCIOA community, and there is no current restriction on STRs, that amendment will need to be approved by at least 67% of the homeowners as it is a “restrictive” amendment.

· Draft Clear Rules: Although it is not advised, if your HOA decides to regulate short-term rentals through rules and regulations rather than amending the CC&Rs, make sure the rules are clear, specific, and consistent with state and local laws. The rules should define what constitutes a short-term rental, outline any restrictions or requirements, and specify penalties for violations. Your HOA will also need to have some firm basis for the ability to regulate STRs found in the declaration even if it is not specifically mentioned. A simple ability to adopt policies and regulations is not good enough.

Consider Different Approaches to Regulation

HOAs in Colorado have several options for managing short-term rentals. The approach your HOA takes should reflect the community’s unique needs and concerns:

· Outright Ban: Some HOAs may choose to prohibit short-term rentals entirely. This approach is often favored by communities that want to preserve a residential character and avoid the potential disruptions associated with STRs.

· Restrictions on Use: Rather than banning STRs altogether, your HOA could impose restrictions, such as limiting the number of days a property can be rented out, requiring a minimum stay duration (e.g., no rentals shorter than seven days), or capping the number of properties that can be used as short-term rentals at any given time.

· Permitting and Registration: Your HOA could require homeowners who wish to engage in short-term rentals to obtain a permit or register with the HOA. This allows the HOA to monitor STR activity and ensure compliance with community rules. Again, this would need some basis or authority in the declaration.

· Impose Additional Fees / Dues or Limit Use of Common Areas: An HOA may be able to impose additional fees or dues on the owner of an STR if the HOA can show that the additional fees are reasonable and directly related to the use of the property as an STR. This is going to be very fact specific, and a good attorney can help you wade through this issue. Alternatively, an HOA can limit use of common areas to Unit Owners or permanent residents. This, too, would likely require an amendment to the declaration.

· Enforcement of Local Laws: In addition to any HOA-specific rules, ensure that homeowners are aware of and comply with local ordinances governing short-term rentals. Your HOA can work with local authorities to enforce these regulations, but an HOA cannot enforce the law itself. Although not addressed by Colorado courts yet, HOAs attempting to enforce local ordinances or state laws have been disfafored by jurisdictions outside of the state.

Communicate with Homeowners

Transparency and communication are key to managing short-term rentals effectively. Whether your HOA is considering new rules or enforcing existing ones, it’s important to keep homeowners informed:

· Hold Meetings: Schedule meetings to discuss the issue of short-term rentals with the community. This provides an opportunity for homeowners to voice their opinions, ask questions, and understand the reasoning behind any proposed rules.

· Distribute Information: Provide homeowners with clear, written information about any rules or restrictions related to short-term rentals. This could include FAQs, summaries of local laws, and details on how the HOA plans to enforce the rules.

· Solicit Feedback: Encourage homeowners to share their thoughts and concerns about short-term rentals. This feedback can help the board make informed decisions that reflect the community’s preferences.

Enforce the Rules Consistently

Once your HOA has established rules regarding short-term rentals, consistent enforcement is essential. This includes:

· Monitoring Compliance: The HOA should monitor compliance with short-term rental rules. This could involve regular checks of rental listings, reports from neighbors, or requiring homeowners to provide rental records.

· Addressing Violations: When a violation occurs, the HOA should take prompt action in accordance with the enforcement procedures outlined in the governing documents. This might include issuing warnings, fines, or pursuing legal action if necessary.

· Resolving Disputes: Disputes between homeowners over short-term rentals can arise. The HOA board should be prepared to mediate conflicts and ensure that all parties understand and adhere to the community’s rules.

Reevaluate and Adjust as Needed

The landscape of short-term rentals is constantly evolving, and your HOA’s approach may need to change over time. Regularly review the effectiveness of your rules and their impact on the community:

· Solicit Ongoing Feedback: Keep an open line of communication with homeowners and encourage them to share their experiences with short-term rentals.

· Adapt to Legal Changes: Stay informed about any changes in local or state laws that could affect short-term rentals in your community.

· Adjust Policies as Needed: If the community’s needs or preferences change, be prepared to revisit and adjust your short-term rental policies. This might involve amending the rules, seeking additional homeowner input, or adopting new enforcement strategies.

Conclusion

Managing short-term rentals is a complex but important task for HOAs in Colorado. By understanding the legal landscape, reviewing and updating governing documents, communicating effectively with homeowners, and consistently enforcing rules, your HOA can strike a balance that meets the needs of all residents. If your HOA is facing challenges related to short-term rentals, consulting with a law firm that specializes in HOA law can provide the guidance and expertise needed to navigate this issue successfully. At Opfer | Campbell | Beck P.C. we are here to assist you in navigating these legal waters. Whether you are a board member of an HOA, a property manager, or a homeowner, call or email us today for a free consult. We strive to bring the “community” back to community association law.

The Revocable Living Trust

brandon@ocblawgroup.com (Brandon Campbell) — Fri, 18 Oct 2024 13:45:00 GMT

Estate Protections Series: Part 7

Inevitably, watching television shows or a movies about a millionaire families, you probably hear about a “Trust." But what exactly is a trust, and do you need one?

The most common form of trust is a Revocable Living Trust. Although there are other types, they usually involve planning for specific tax issues (e.g. those mega-millionaire families) or specific asset protection (e.g. a physician who is often sued). But most Americans use Living Trusts for organization and to avoid probate. Trusts allow us to control assets while we are alive, ensure they avoid probate, and then manage and protect them after we pass.

How does a trust work?

If you think of a trust like a business, it is something you create during your lifetime. You, or you and your spouse/partner, are the owners of it, also called the “Grantors.” While you are alive, it is your money and property and you can do with it what you please. Until you, or both of you, have passed away, you can change the terms of the trust at any time.

Separately, a Trust has “Trustees,” individuals or professionals who manage the trust. Trustees transact business, manage assets, and carry out any instructions you leave them. Usually, the Grantor is the first Trustee, but if they cannot serve, Successor Trustees step in. By its name, this position requires a lot of trust, so consider who is best to manage inheritance after you are gone.

Finally, a Trust involves “Beneficiaries,” those people and/or charities who receive the inheritance. A Trust is unique because, even though people die, the Trust does not. This allows you to continue controlling as much or little of the inheritance as you choose. For example, if with young children, you can plan for how money is managed until they become adults (and even afterwards). Or for beneficiaries with financial problems, substance abuse issues, etc., you can install a third party to manage it for them. One of the most important issues a trust solves is blended families, which we will cover in a later blog.

As process, a person creates a living trust while they are alive, hence the name. After signing it, they “fund” the trust with their assets. This involves retitling things like your home into the entity. During your lifetime, you use and enjoy your assets like usual, but after passing away, the Trustee steps in to carry out your instructions. A Trust can be as simple or intricate as you like, extending out decades after death if needed.

Who needs a trust?

Again, most people use the Revocable Living Trust for their estate planning. Every adult can create one, and most choose to because they understand the benefits. There are, however, a few reasons when a Trust is necessary:

· Minors: A child under age 18 cannot manage assets like a house, so if you try to leave them inheritance, it triggers complicated proceedings in probate. Through a Trust, though, you can leave inheritance to minors without court proceedings.

· Disabilities & Special Needs: Many people with disabilities rely in government benefits. But these benefits have restrictions about what people can own and income they can receive. A Trust allows you to leave inheritance to disabled beneficiaries without causing them to lose benefits.

· Blended Families: We will address this topic in a later blog, but blended families (e.g. step-parents and step-children) can cause “unintended disinheritance.” This is where money you intended for your children ends up with a spouse’s family instead. Around 50% of families are blended, so Trusts are invaluable to avoid this outcome.

· Financial Management: Beneficiaries come in all walks of life, and unfortunately that can include substance abuse, gambling problems, significant debt, and so many others. When you simply cannot give all the inheritance to someone at once, a Trust is a great solution to install a third-party manager, stretch out distributions, and ensure certain conditions are met (e.g. drug testing) before money is distributed.

How can an estate attorney help?

Beyond any other estate planning tools, Trusts are the most intricate. How you set up the trust can impact beneficiaries for decades, so it is critical to speak with knowledgeable, experienced estate attorneys. Rest assured, the process sounds difficult but with a good attorney’s help, it should be fast and painless. Contact our office today for a no-cost, no-obligation consultation. We will provide you resources and an action plan to help you understand if a Revocable Living Trust is right for you!

Understanding HOA Governing Documents

Thu, 10 Oct 2024 16:48:03 GMT

CC&Rs, Articles of Incorporation, Bylaws, Policies, and Architectural Guidelines

For any Colorado homeowner living within a community governed by a Homeowners' Association (HOA) and for those serving on the HOA board, understanding the various governing documents is essential. These documents outline the rules, responsibilities, and legal framework that shape the relationship between homeowners and the HOA. Here, we will break down the most important documents: Covenants, Conditions, and Restrictions (CC&Rs), Articles of Incorporation, Bylaws, Policies, and Architectural Guidelines.

Before we begin, it is imperative that homeowners and board members understand the hierarchy of laws and documents within an association. The hierarchy from most to least authoritative is as follows: Federal Law and State Law, Recorded Plat or Map, Declaration of Covenants (CC&Rs), Articles of Incorporation, Bylaws, and Operating Rules and Regulations (Architectural Guidelines, Policies, Procedures, Resolutions, etc.).

Declaration of Covenants, Conditions, and Restrictions (CC&Rs)

CC&Rs, sometimes just call the declaration, are the foundational rules and restrictions governing the community. These are typically recorded with the county and apply to all properties within the HOA. The CC&Rs address a wide range of topics, such as:

· Property Use: Restrictions on how properties can be used, such as whether homes can be rented or used for business purposes.

· Maintenance Standards: Rules regarding the upkeep of homes and common areas to maintain the community's appearance and property values.

· Architectural Controls (not to be confused with Architectural Guidelines): Requirements on what changes homeowners can make to their homes, such as exterior paint colors or landscaping.

The CC&Rs are enforceable legal documents that protect the community’s aesthetics and harmony. They are binding on all property owners and often have provisions that allow for fines or legal action in cases of violation. Think of the CC&Rs as a contract between homeowners and each other and homeowners and the association.

In the context of Homeowners' Associations (HOAs), **plats** and **maps** are crucial documents that provide detailed information about the physical layout and boundaries of the community. Here's a breakdown of each:

Plats and Maps

A plat is a formal, legally recorded document that shows the division of a large piece of land into smaller lots, typically for development purposes. For HOAs, plats contain critical information such as:

· Lot Boundaries: It identifies individual properties and their boundaries.

· Common Areas: The location of shared spaces like parks, roads, or recreational facilities managed by the HOA.

· Easements: Areas reserved for utilities or access, which may impact how homeowners can use their property.

· Roadways: Public or private streets within the community.

Plats are often submitted to local government agencies for approval before any development occurs and are then recorded with the county clerk's office. They help ensure compliance with zoning laws and other regulations.

Maps, often included as part of the plat or as a separate document, provide a visual representation of the community’s layout. In Colorado, maps mainly cover vertical space In HOA communities and can serve several purposes:

· Visual Aid: They help residents and potential buyers understand the location of homes, common areas, and amenities as they relate to vertical spaces in areas such as condominiums or townhomes.

· Boundary Clarity: Maps can help resolve disputes by clearly showing homeowner-maintained areas and the location of HOA-maintained areas.

· Utility Planning: Maps show where utilities (like water, electricity, and sewage) are located.

Both plats and maps are foundational to the governance of an HOA community. They not only establish legal boundaries but also influence how the HOA manages property maintenance, assesses fees, and enforces architectural guidelines. For any disputes regarding property lines or common areas, plats and maps provide a definitive reference point. By understanding these documents, both HOA boards and homeowners can better manage their properties and the community as a whole.

Articles of Incorporation

The Articles of Incorporation establish the HOA as a legal entity, typically as a nonprofit corporation under Colorado law. Filed with the Colorado Secretary of State, this document includes basic information such as:

· Name and Purpose of the HOA: The formal name of the association and its primary purpose, such as maintaining common areas and enforcing the community’s rules.

· Incorporators: The individuals who established the HOA.

· Powers of the Association: The authority granted to the HOA, such as the ability to levy assessments, enforce rules, and manage common areas.

The Articles of Incorporation are required for the HOA to operate legally and provide a framework for its legal status and general purpose. Although high in the hierarchy, the Articles of Incorporation provide little in the way of governance and day-to-day operational requirements.

Bylaws

Bylaws are the internal operating rules of the HOA, dictating how the organization is run. While the CC&Rs focus on the rights and responsibilities of homeowners, the bylaws focus on the functioning of the HOA itself as an entity. Key provisions in the bylaws typically include:

· Board of Directors: The composition of the board, how members are elected, their terms, and their responsibilities.

· Meetings: Rules regarding annual meetings, board meetings, and quorum requirements for decision-making.

· Voting Procedures: How homeowners vote on HOA matters, such as elections or amendments to the governing documents.

The bylaws help ensure that the HOA operates smoothly and transparently, providing a structure for governance and decision-making.

Policies and Rules

In addition to the core governing documents, HOAs often adopt policies and rules that provide more specific guidance on certain matters. These policies are typically adopted by the board and may cover:

· Assessment Collection: Procedures for collecting dues, late fees, and handling delinquent accounts.

· Fines and Enforcement: Guidelines on how the HOA enforces its rules, including the imposition of fines for violations.

· Use of Common Areas: Rules regarding the use of amenities such as pools, clubhouses, or parks.

Policies are more easily amended than the CC&Rs or bylaws and allow the HOA to address evolving community needs or legal requirements. There are also certain policies that are required under the Colorado Common Interest Ownership Act (CCIOA) § 38-33.3-209.5. This section of CCIOA is extremely complicated and lays out the required policies for all HOAs. There are 11 required policies arising from this section of CCIOA. At Opfer | Campbell | Beck P.C. we offer all 11 pre-written policies to our HOA clients free of charge and include an additional 6 recommended policies. All an association has to do is fill in the blanks. While other firms charge hundreds if not thousands of dollars for these policies, we do not believe in charging for work that has already been done.

Architectural Guidelines

Architectural Guidelines are a critical part of maintaining the aesthetic consistency of a community. These guidelines are often referenced in the CC&Rs but may also be a standalone document under the “Policies and Rules” category. If not enumerated in the CC&Rs, these policies can expand or explain the language in the CC&Rs but cannot be more restrictive than the CC&Rs; remember the hierarchy.

Architectural Guidelines govern:

· Exterior Changes: Requirements for making alterations to the exterior of a home, such as adding fences, patios, or satellite dishes.

· Review Process: How homeowners must submit proposals for changes and the process by which the HOA reviews and approves or denies them.

· Aesthetic Standards: The specific design standards the community follows, such as approved paint colors, types of landscaping, or window treatments.

These guidelines are meant to preserve the community’s appearance, protect property values, and ensure any changes are in line with the community’s standards.

Conclusion

HOA governing documents - CC&Rs, Bylaws, Articles of Incorporation, Policies, and Architectural Guidelines - are crucial in defining how a community operates and how residents interact within it. Understanding each document’s role ensures that both the HOA board and homeowners comply with Colorado laws and maintain a harmonious living environment. If your HOA needs to update or amend any of these documents, it is wise to consult legal counsel to ensure compliance with the Colorado Common Interest Ownership Act (CCIOA) and other applicable laws.

For more in-depth guidance on HOA matters, such as amending and updating your governing documents, contact our law firm for expert legal advice tailored to your community’s specific needs. At Opfer | Campbell | Beck P.C. we offer free consultations and pride ourselves in bringing the “community” back to community association law.

Embracing Diversity in Shared Custody

Tue, 03 Sep 2024 12:45:01 GMT

Supporting Each Other's Culture and Heritage

In a shared custody situation, fostering an environment that respects and celebrates both parents' cultures and heritage is essential for the emotional and social development of the children. This practice not only enriches their lives but also teaches them the value of diversity and mutual respect. Here are some key strategies for co-parents to support each other’s culture and heritage effectively.

Communicate Openly About Cultural Practices

Begin by discussing each other’s cultural practices and traditions openly. Share the significance of various customs, holidays, and rituals with each other. Understanding the importance behind these traditions helps both parents appreciate and support them more fully. Open communication lays the foundation for mutual respect and cooperation.

Incorporate Both Cultures in Daily Life

Incorporate elements from both cultures into daily life and routines. This can include language, food, music, and stories. For instance, you might cook traditional meals from each culture or listen to music from both heritages. Exposing children to a diverse range of cultural experiences helps them develop a strong sense of identity and appreciation for their background.

Celebrate Holidays and Traditions Together

Whenever possible, celebrate cultural holidays and traditions together. Joint celebrations can be a powerful way to show children that both cultures are valued and respected. If celebrating together isn’t feasible, ensure that the children have the opportunity to participate in each parent’s cultural traditions. Share stories and explain the significance of these celebrations to make them more meaningful.

Educate and Involve Extended Family

Educate and involve extended family members in supporting the children’s cultural heritage. Encourage grandparents, aunts, uncles, and other relatives to share stories, traditions, and cultural practices. This involvement strengthens the children’s connection to their heritage and provides them with a broader support network.

Create a Multicultural Environment at Home

Create a multicultural environment in both homes by decorating with items that reflect both heritages. This can include artwork, books, and cultural artifacts. A multicultural environment helps children feel connected to both sides of their family and reinforces the importance of their diverse background.

Encourage Learning and Exploration

Encourage your children to learn about and explore both cultures. This can be through books, movies, cultural events, and community activities. Supporting their education and curiosity about their heritage helps them develop a deeper understanding and appreciation of their background.

Respect and Support Each Other’s Efforts

Respect and support each other’s efforts to maintain cultural traditions. Avoid dismissing or undermining the other parent’s cultural practices, even if they are different from your own. Show genuine interest and willingness to learn about the other culture. This attitude sets a positive example for the children and fosters a respectful co-parenting relationship.

Address and Resolve Cultural Conflicts Amicably

Cultural differences can sometimes lead to conflicts. Address these conflicts amicably and with a focus on understanding and compromise. Seek to resolve disagreements in a way that respects both cultures and prioritizes the well-being of the children. If necessary, seek the assistance of a mediator or cultural advisor to navigate these challenges.

Highlight Common Values

Focus on common values and principles shared by both cultures. Emphasize the similarities and shared goals in raising the children, such as the importance of family, respect, and education. Highlighting common values can bridge cultural differences and create a unified approach to parenting.

Be Flexible and Adaptable

Be flexible and adaptable in integrating cultural practices. Recognize that cultural traditions may need to be adjusted to fit the new family dynamic. Being open to adaptation ensures that both cultures are honored in a way that works for everyone involved.

Conclusion

Supporting each other’s culture and heritage in a shared custody situation requires openness, respect, and a commitment to celebrating diversity. By integrating cultural practices into daily life, celebrating traditions together, and fostering a multicultural environment, co-parents can provide their children with a rich and inclusive upbringing. This approach not only strengthens the children’s sense of identity but also teaches them the value of respecting and embracing differences.

Vacationing in a Co-Parent Relationship

Sat, 24 Aug 2024 22:30:00 GMT

Tips for a Smooth & Enjoyable Experience

Vacationing in a co-parenting relationship can be a wonderful opportunity for children to create lasting memories with both parents. However, it also comes with its unique set of challenges. Planning and cooperation are essential to ensure that vacations are enjoyable and stress-free for everyone involved. Here are some tips to help co-parents navigate vacation planning and execution successfully.

Early and Transparent Planning

Start planning vacations as early as possible. Early planning allows both parents to discuss and agree on dates, destinations, and other details. Be transparent about your vacation plans and encourage the same from your co-parent. This openness helps prevent scheduling conflicts and misunderstandings.

Clear Communication

Effective communication is crucial for co-parenting, especially when it comes to vacations. Use clear, respectful, and honest communication to discuss your vacation plans. Share itineraries, travel arrangements, and contact information. This ensures that both parents are well-informed and can plan accordingly.

Consider the Children’s Preferences

Involve your children in vacation planning if they are old enough to express their preferences. Consider their interests and activities they enjoy. This makes the vacation more enjoyable for them and shows that their opinions matter. Balancing each parent's ideas with the children's desires can lead to a more harmonious and fulfilling trip.

Follow Legal Agreements

If you have a parenting plan or agreement, ensure that your vacation plans comply with it. Review the agreement for any specific provisions regarding travel, such as required notice periods or restrictions on destinations. Adhering to the legal framework prevents potential disputes and keeps the process smooth.

Provide Adequate Notice

Inform your co-parent about your vacation plans well in advance. Providing adequate notice allows your co-parent to make necessary arrangements and prepares the children for the transition. It also shows respect for the co-parent's time and schedule.

Share Travel Details

Share all relevant travel details with your co-parent, including flight information, accommodation addresses, and emergency contact numbers. This ensures that both parents can stay connected and feel reassured about the children’s safety and well-being during the trip.

Prepare the Children

Help your children prepare for the vacation by discussing the trip details with them. Explain what they can expect, including the itinerary, travel logistics, any new experiences they might encounter, and how they will maintain contact with their other parent. This reduces anxiety and builds excitement for the trip.

Maintain Regular Communication

During the vacation, maintain regular communication with your co-parent. Share updates and photos, and encourage the children to call or video chat with the other parent. This keeps the non-traveling parent involved and helps the children feel connected to both parents.

Be Flexible and Understanding

Flexibility is key in co-parenting. Be open to adjustments and compromises if unexpected situations arise. Understanding and accommodating each other's needs and circumstances can prevent conflicts and ensure a smoother vacation experience.

Post-Vacation Debrief

After the vacation, have a debriefing session with your co-parent. Discuss what went well and any challenges that arose. This feedback can help improve future vacation planning and co-parenting strategies.

Conclusion

Vacationing in a co-parenting relationship requires thoughtful planning, clear communication, and a cooperative spirit. By focusing on the children's well-being and working together, co-parents can create memorable and enjoyable vacation experiences. The goal is to ensure that vacations are a time of joy and bonding for the children, allowing them to feel loved and supported by both parents. With the right approach, co-parenting vacations can be a positive and enriching part of your family dynamic.

The Last Will & Testament

brandon@ocblawgroup.com (Brandon Campbell) — Wed, 14 Aug 2024 18:15:00 GMT

Estate Protections Series: Part 6

When most people look into “estate planning,” it is because they want to create a Last Will. Simply, they want a document that serves as their voice when they pass away. Although it is important, please recall from this series that Wills do not avoid probate. The function of this document is to make probate easier should it happen after your death. In a later installment of our series, we will address probate and how to avoid it. For now, let us explain the Last Will.

What is a will?

The Will document has existed for centuries, serving as an instruction manual to wrap up your affairs when you are gone. Any person over the age of 18 can create a Will (and they should!), and in it, most people provide for a few important issues:

Who will wrap up my affairs? Previously the "Executor" (now "Personal Representative"), you name this person to take care of any affairs after you die. Their main job is to handle your probate case, if you have to go into probate. Most people name a first choice, followed by backups or "successors."

Who will take care of my children? If you have any children under age 18, your Will allows you to nominate guardians. This is a person or couple who can take over their care until the child reaches 18. Without a Will and guardian nomination, anyone can petition to take your children. This often results in family disputes, or even the government taking your children until the issue resolves. Guardians can be anyone over age 18, and they do not need to be related to your child.

Who receives my money and property? A Will dictates where inheritance goes, including who does and does not receive from you. The Will also allows you to explain how you want certain assets managed or divided.

What are my final wishes? Including decisions like burial or cremation, the Will identifies your wishes for "last remains." This makes sure everything is very clear and can help prevent disputes among your loved ones. There are so many options for last remains today, so we recommend reading our blog here !

How do final expenses, taxes, and probate work? Your Will controls the actual processes for final administration of your affairs. These let you control the complexity of any probate proceedings, as well as ensuring what money pays for final expenses, taxes, etc.

Why should i have a Will if it doesn't avoid probate?

Even though you need to take steps to avoid probate, every person over age 18 should have a Will. The document acts as a safety net, making sure that your wishes are met even if you end up in a probate situation. For people with minor children, even if you avoid probate for yourself, the Will ensures that the right people step in to take your children.

Along with Medical Directives and a strong Power of Attorney, the Last Will & Testament is the last document of the basic estate plan. Everyone needs these documents! However, how you avoid probate and address specific financial or family issues may involve more complexity, including creating a trust (which we will cover in a later segment).

How can an estate attorney help?

You have several options for how to create documents and what you include for your specific situation. At Opfer | Campbell | Beck P.C., our attorneys always provide you with a no-cost consultation, a review of any existing estate plan documents, and plenty of resources so you understand the best plan of action for you. Contact our office today for more information and for scheduling!

Establishing Jurisdiction for Child Support

Fri, 02 Aug 2024 12:00:09 GMT

Jurisdiction for Initial Support Determinations

The Uniform Interstate Family Support Act (UIFSA) is the unform law adopted by most U.S. states, Colorado included. UIFSA governs the establishment of paternity and child support orders, enforcement of child support orders, and modification of child support orders in interstate cases. However, as the purpose of this blog is to discuss how a court can obtain jurisdiction to enter an Initial Child Support Order, we focus only on the establishment of jurisdiction and of paternity and child support orders under UIFSA. In order to establish a child support order or determine paternity in Colorado, Colorado courts must have personal jurisdiction over the responding party/respondent, which is the other parent. Personal jurisdiction over the respondent can be accomplished in a number of ways under C.R.S. § 14-5-201:

The respondent is personally served in the State of Colorado;
The respondent consents to jurisdiction in Colorado by entering a general appearance into the case, by filing a responsive document that does not object to the lack of personal jurisdiction, or filing a Waiver and Acceptance of Service;
The responding party resided with the child in Colorado;
The responding party resided in Colorado and provided prenatal expenses or support for the child;
The child resides in Colorado as a result of the acts of directive of the respondent;
The responding party engaged in sexual intercourse in Colorado and the child may have been conceived through the act of intercourse; OR
There is any other basis consistent with the constitutions of Colorado and the United States for the exercise of personal jurisdiction.

If none of the requirements detailed can be met, then the respondent’s state of residence would be the issuing state for the support order. At Opfer | Campbell | Beck, P.C., we understand that issues related to jurisdiction and the UIFSA can be overwhelming and complicated. If you have questions regarding these issues, contact the attorneys at Opfer | Campbell | Beck P.C. for a free 60-minute consultation at (303) 791-0995.

The Business Operating Agreement

brandon@ocblawgroup.com (Brandon Campbell) — Sun, 21 Jul 2024 21:30:00 GMT

Business Protections Series: Part 2

In Part 1 of our Business Protections Series, we discussed how to form a Limited Liability Company in Colorado. After forming it, an important step is to create a business Operating Agreement. Or, for corporations, this might be Bylaws and a Shareholder Agreement. For legal partnerships, it is a Partnership Agreement. No matter the title, the Agreement acts as a blueprint for the company, covering:

Management of day-to-day affairs
Owners’ rights, including inspection of corporate records and voting;
Necessary votes required for major decisions
Decisions about employees, officers, compensation, and distributions of profits and losses
Dispute resolution
Company dissolution and liquidation

Operating Agreements might contain more as needed, including “Buy-Sell” agreements. We will address those in a later segment. Regardless of its contents, the Operating Agreement should serve to outline anything that might affect business operations. This helps resolve any questions or disputes in advance, outside of court.

Of note, a company should have an Operating Agreement even if it is a single-owner entity. When obtaining financing or credit, owners usually have to provide an Operating Agreement. The lack of one can delay or damage the applicant’s underwriting process. Most important, multi-owner companies need an Operating Agreement to resolve any problems that might arise between the owners. Without one, we turn to the Colorado Revised Statutes for guidance, which may or may not help. The lack of an Operating Agreement might also force the owners to dissolve their entity to resolve the issue. These complications can harm the business value and damage any prospects the owners might otherwise have.

Every business should have an Operating Agreement in place no matter the company structure. To learn more about company formation and the associated documents, please contact our office for a free business consultation. And stay tuned for our upcoming Business Protections Series installments!

Establishing Jurisdiction for Child Custody

Thu, 11 Jul 2024 16:30:00 GMT

Where to file for initial custody determinations

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is the uniform law adopted by most U.S. states, Colorado included. The UCCJEA provides many provisions including “Initial Child-Custody Jurisdiction,” which determines the state that has authority to make an initial child custody determination. This pertains to both physical custody (parenting time and physical care of the child) and legal custody (decision-making). The UCCJEA applies to all child-custody proceedings, including cases that involve the allocation of parental responsibilities, paternity, guardianship, termination of parental rights, legal separation, and in divorce cases where custody determinations are to be made. The UCCJEA also has provisions for establishing the state that retains authority to modify custody orders over time and mechanisms for enforcing custody orders across state lines. However, as the purpose of this blog is to discuss how a court can obtain jurisdiction over an initial custody determination, we focus on the “Initial Child-Custody Jurisdiction” provisions of the UCCJEA. Under the UCCJEA, there are a few ways to establish that Colorado courts have jurisdiction to make an initial child-custody determination:

Home State: The most common and prioritized way to establish that a state has jurisdiction to make initial custody determinations is by establishing that said state is the child’s home state. Under C.R.S. § 14-13-201(1)(a), Colorado has jurisdiction to make an initial child-custody determination if Colorado is the home state of the child on the date the child-custody case is filed or was the home state of the child within 182 before the case was filed and the child is absent from Colorado but a parent or person acting as a parent continues to live in Colorado. Under C.R.S. § 14-13-102(7)(a), home state means the state in which a child lived with a parent or a person acting as a parent for at least 182 consecutive days immediately before the filing of a child-custody case. If the child is less than six months old, “home state” refers to the state where the child has lived since birth.

Significant Connection: Under C.R.S. § 14-13-201(1)(b), if the child does not have a home state as defined above, or another state has declined to exercise jurisdiction because they’ve determined Colorado is the more appropriate place for the initial child-custody determination to be made, Colorado may exercise jurisdiction if 1) the child and the child’s parents, or the child and at least one parent or person acting as a parent have a significant connection with Colorado (other than mere physical presence) and 2) substantial evidence is available in Colorado concerning the child’s care, protection, training, and personal relationships.

More Appropriate Forum: Under C.R.S. § 14-13-201(1)(c), Colorado may exercise jurisdiction to make the initial child-custody determination if all courts having jurisdiction have declined to exercised jurisdiction because they’ve determined Colorado is the more appropriate place for the initial child-custody determination to be made.

Last Resort: Under C.R.S. § 14-13-201(1)(d), Colorado may exercise jurisdiction if no court of any other state meets any of the requirements above to establish jurisdiction.

If your case meets the requirements of C.R.S. § 14-13-201(1), as detailed above, that is the sole jurisdictional authority the Court needs to make an initial child-custody determination. As such, personal jurisdiction over the respondent is not required to make an initial child-custody determination (i.e. it doesn’t matter where the other parent lives). This is a different standard than is required for establishing an Initial Child Support Order or addressing other matters such as property division in a divorce. In any event, when proceeding with an action for an initial child-custody determination, the respondent, typically the other parent, still must be served and provided with notice of the proceedings as required by law. Keep in mind that this blog covers only the provisions for the initial child-custody determination. If a situation arises where a child has been abandoned or there is an emergency, the provisions regarding Temporary Emergency Jurisdiction can be found under C.R.S. § 14-13-204.

At Opfer | Campbell | Beck, P.C., we understand that issues related to jurisdiction and the UCCJEA can be overwhelming and complicated. If you have questions regarding these issues, contact the attorneys at Opfer | Campbell | Beck P.C. for a free 60-minute consultation at (303) 791-0995.

Financial Powers of Attorney: An Overview

brandon@ocblawgroup.com (Brandon Campbell) — Tue, 25 Jun 2024 13:45:00 GMT

Estate Protections Series: Part 5

In Part 4 of our Estate Protections Series, we discussed how to plan your medical affairs when incapacitated, but what about finances? If a sudden accident or a long-term illness prevents you from managing your own life, your loved ones need to take over your bills, investments, property, and so on without any difficulties. A "General Durable Power of Attorney" achieves this, giving your best choices the power to step in for you. The POA avoids a type of probate case called “Conservatorship," which is time-consuming, expensive, opens the door to fighting, and usually requires long-term court supervision. When done correctly, you can avoid all this with a simple signature.

What is Power of Attorney?

The idea of “Power of Attorney” involves giving another person the power to represent you. This can be to banks, the IRS, your landlord, and so on. There are often different versions of financial Power of Attorney between each state. The most common version is the General Durable Power of Attorney. It installs “agents” in the order you choose to step in if you become incapacitated and manage your non-medical affairs. They might only handle simple items like paying bills or collecting Social Security. But they can also take on more complicated tasks like running your business or handling your lawsuit.

Like with the Medical Power of Attorney, you can choose anyone to serve. This might be friends, family members, or even a professional / company. You should install a first choice, called an "agent," and then at least one or more backups. The only rule is everyone needs to be at least 21 years old and willing to do the work. An agent does not need to live in Colorado, and they can receive reasonable compensation. Like with any medical agents, what matters is that you trust them.

How can an Estate Attorney help?

With any decision involving your life, it is critical to speak with an attorney about the best form and contents of any Power of Attorney. The estate attorneys at Opfer | Campbell | Beck P.C. have significant experience structuring these documents, so please feel free to contact us today for resources and a no-charge consultation.

Navigating Co-Parenting During Summer Break: A Guide For Success

Tue, 11 Jun 2024 15:30:50 GMT

Summer break can be a time of fun and adventure for children, but for co-parents, it often brings a unique set of challenges. Balancing vacations, camps, and time with extended family while maintaining a stable and harmonious environment for the kids requires careful planning and open communication. Here are some essential tips for making co-parenting during summer break as smooth as possible.

Plan Ahead

The key to a successful summer co-parenting schedule is planning. Begin discussions well in advance of the school year ending. This gives both parents ample time to voice their preferences and work out any conflicts. Create a detailed calendar that outlines where the children will be and when, including vacations, camps, and special events.

Communicate Clearly

Open and honest communication is the cornerstone of effective co-parenting. Regularly check in with each other to ensure plans are on track and discuss any necessary adjustments. Utilize tools like shared digital calendars or co-parenting apps to keep everyone on the same page.

Be Flexible

Summer schedules can be unpredictable, with last-minute changes or unexpected opportunities. While having a plan is crucial, being flexible and willing to compromise when plans need to change is equally important. This flexibility can help reduce tension and show your children that both parents are working together for their best interests.

Respect Each Other’s Time

It’s essential to respect each other’s time and commitments. If one parent has planned a vacation or a special outing, the other parent should be supportive and avoid scheduling conflicting activities. Respecting each other’s time also means adhering to agreed-upon schedules and promptly communicating any changes.

Keep the Children’s Best Interests in Mind

Every decision should prioritize the children’s well-being. Consider their needs, interests, and routines when planning summer activities. Discuss the schedule with your children, if age-appropriate, to get their input and make them feel included in the decision-making process.

Coordinate Vacations

Vacations are a significant part of summer break. To prevent conflicts, clearly outline the process for requesting vacation time in your parenting plan. Decide on how much advance notice and information about the travel is required and how you will handle overlapping requests. Ensuring both parents get quality vacation time with the children can make the summer enjoyable for everyone.

Handle Camps and Activities Jointly

Summer camps and activities can be a logistical challenge but also a valuable childcare and enrichment opportunity for your family. Discuss the cost, transportation, and scheduling details together. If possible, attend important events and activities together to show your support as a united front.

Maintain Consistency

Children thrive on consistency and routine, so try to maintain regular schedules and rules across both households. Consistent bedtimes, meal routines, and activity schedules help children feel secure and reduce the stress of transitioning between homes.

Address Conflict Appropriately

Disagreements are inevitable, but how you handle them makes all the difference. Aim to resolve conflicts calmly and privately, away from the children. If necessary, seek the help of a mediator or co-parenting counselor to work through more challenging issues.

Celebrate Together When Possible

If the relationship allows, consider celebrating special occasions, summer holidays, or bbqs together. Joint celebrations can provide a sense of normalcy and togetherness for the children, reinforcing that both parents are there to support and love them.

Conclusion

Co-parenting during summer break requires careful planning, clear communication, and a commitment to flexibility and cooperation. By keeping the children’s best interests at the forefront and working together, co-parents can create a summer filled with joy, stability, and memorable experiences for their children. Remember, the goal is to ensure that the children have a happy and seamless summer, feeling loved and supported by both parents.

Medical Directives in Estate Planning

brandon@ocblawgroup.com (Brandon Campbell) — Fri, 31 May 2024 14:15:01 GMT

Estate Protections Series: Part 4

As discussed in Part 1 of our Estate Protections Series, “estate planning” is more than creating a Will. While you are alive, one of the most important sets of documents are your “Medical Directives.” These include a Medical Durable Power of Attorney, a Living Will (a/k/a Advance Medical Directive), a standalone Medical (HIPAA) Release, and possibly a form known in Colorado as MOST (“Medical Orders for Scope of Treatment”). They ensure people know your medical wishes if you are “incapacitated" and cannot make your own decisions. Without medical directives, you may end up in a type of probate known as a Guardianship. This is where a person who wants to help you goes through the court to have a judge give them this same authority. Proper estate planning includes these directives to avoid a Guardianship.

So, what are the documents and how do they work?

The Medical Durable Power of Attorney

The Medical Power of Attorney is very similar to the “General Power of Attorney” (See Part 5 of this series). When you cannot make decisions yourself, the POA installs an “agent” to become your legal representative. For a Medical POA, this covers all healthcare decisions. The agent can be any person, or even a professional, so long as they are at least 18 years old. An agent does not have to live in Colorado, but that can make managing your healthcare easier. Most important, you want to name people you TRUST to make these important decisions.

The Living WIll

Also known as an "Advance Medical Directive," the Living Will serves one purpose: When do you remove me from life support? Most of us do not want our loved ones having to make difficult decisions for us. And when we reach the end of our lives, that difficulty is the greatest it can be. A Living Will instructs about end-of-life care so that our medical professionals know our wishes, and our loved ones do not have to make the decision. There are different versions of the Living Will form, which can be confusing, and the document requires a special signing to make it valid. Whatever your wishes, we recommend you speak with an attorney to prepare a directive that meets all your needs.

The HIPAA Authorization

A Medical Power of Attorney only installs one person at a time to make decisions and talk to your doctors. But if we have an accident, we probably have other people we want to give basic access to call the hospital or talk to the doctors. We can do this by creating a Medical (HIPAA) Release form. With it, we can give our loved ones access to important information without giving them any authority to make decisions.

The MOST Form

Known as "Medical Orders for Scope of Treatment," this directive allows you to make decisions about emergency medical intervention, such as whether you want CPR or artificial nutrition after an accident. The directive allows you to decide care across three major areas and can be a “Do Not Resuscitate" (DNR) if you choose. The form requires you to consult with a physician, who must sign it with you. So we recommend you speak with your primary physician if you have any interest in signing a MOST. You can find a copy of the current Colorado form here.

How can an attorney help?

Estate planning is full of options and can be overwhelming. Nothing is more important than the care you receive, and who decides that care, when you cannot decide for yourself. An estate attorney will help you understand your options and make sure your documents reflect all your wishes. Contact our offices today for a no-cost, no-obligation consultation!

How do I form a Limited Liability Company in Colorado?

brandon@ocblawgroup.com (Brandon Campbell) — Sun, 19 May 2024 19:30:00 GMT

Business Protections Series: Part 1

When starting a business, the simplest and most common form of entity is the Limited Liability Company (LLC). Whether we use the LLC for a traditional business or to hold investments, it offers both flexibility and legal protections. Not only are LLC’s simple to form and operate, they only cost $50 to register with the Colorado Secretary of State. So, what are the steps and best practices to set up a Colorado LLC?

First, you must decide a name for the entity, and whether that name is available. You can check by searching the Secretary of State business database, located at http://www.sos.state.co.us . If the name is not available, consider similar variations until you find the best option. It is also a good practice to search online and determine if any other companies are already using that name, own the website or e-mail domains for that name, or have any online presence with that name. If so, you might choose a different name to avoid any claims by those other companies.

Once you decide the name, you can register the business. On the Secretary of State, website, "Business Organizations" allows you to you manage any business entities. You begin with “File a Business Document” to create a NEW record, and from this platform, you begin the online application. The website is very step-by-step and user-friendly, and if you cannot answer a section, you can exit and restart later when you have the information. Once you finish entering everything, you receive a preview of the company “Articles of Organization." You can make any final edits if needed, and then submit to create the LLC. To finalize, you will pay a $50 registration fee, and then your company exists! Every year afterwards, you need to file a "periodic report" to update any information. This report only typically costs $10.

Registering the business is only the first step to creating a successful business. Remaining steps to take include, but are not limited to:

1. Obtain the "Employer Identification Number" (EIN)

2. Create a company Operating Agreement

3. If there are multiple owners, create and fund a Buy-Sell Agreement

4. Arrange proper insurance for the company, including commercial liability insurance

5. Establish proper bookkeeping and accounting systems

6. Create any business contracts for use by the LLC

7. Create any Independent Contractor Agreements if you plan to use any 1099 contractors

8. Create an Employee Handbook and Employment Agreements for any employees

9. Obtain all necessary business licenses, certifications, etc.

10. Prepare a commercial lease agreement for any rented building space

11. Meet your business and estate attorney for business succession planning

12. Prepare any investor and loan agreements for anyone that contributes money to the business.

For our quick guide to auditing your business protections, click here .

An experienced corporate attorney can coordinate any of these steps for you in an efficient, cost-effective manner. They can also connect you with the best financial, tax, and insurance professionals. If you are considering forming a company in Colorado, or if you need to audit a business you already have, the attorneys at Opfer | Campbell | Beck P.C. can assist you. Contact our office today for a free business consultation!

What are the first steps when someone dies?

brandon@ocblawgroup.com (Brandon Campbell) — Mon, 06 May 2024 21:54:45 GMT

A Guide for the First Days & Weeks

We all hope that the transition from life to death will be smooth, but unfortunately most deaths come with confusion and uncertainty. To provide some understanding, here are several next steps you can follow:

Immediately After Death

Colorado requires that a qualified medical professional is notified of the passing. If the death happens outside of a hospital, then you must notify the Coroner’s Office.
Work with the hospital or coroner to arrange to have your loved one taken to the Coroner’s Office. If you know your loved one’s organ donation wishes, make sure to communicate them.
Immediately secure your loved one's home, to insure against possible break-ins and theft. You want to secure all their property until the next legal steps happen.

The First Few Days

Look through your loved one's paperwork for important records. These include information for any burial planning, burial insurance, or general wishes. Then, do what you can to follow those wishes.
Contact the appropriate mortuary or crematorium and begin the process for final services.
If your loved one received public assistance benefits or was a veteran, there may be financial programs available. Check with appropriate authorities to determine that status.
While everything is pending, make sure to check their mail, answer their phone, take care of their pets, and keep other loved ones informed.
Handle the funeral and make sure to care for everyone.

The Next Few Weeks

Obtain certified death certificates from the County Coroner or mortuary. Remember you can always order more from the "Office of Vital Records" if you run out.
Provide death certificates for all financial assets. This includes financial accounts (checking accounts, credit cards, etc.), life insurance, retirement plans, utility and phone companies, and any source of their income (pension plan, PERA, Social Security). If you discover a safe deposit box, make sure that bank branch receives a death certificate.
Locate all estate and legal documents, including the originals if possible. This includes a Last Will, Trust Agreement, Beneficiary Deed, or Designated Beneficiary Agreements. If you cannot find documents but know who prepared them, contact the attorney's office.
Avoid collecting or cash out accounts until you know the next legal steps. Do not cash any income checks (e.g. from a pension) until you speak with an attorney. Certain income payments must be refunded after a person's death.

What next?

The process of dealing with death can be chaotic and terrifying. The attorneys at Opfer | Campbell P.C. have many years of experience helping survivors navigate these steps, so please call them today for a consultation. For a very comprehensive guide, click here for "When A Loved One Passes Away."

Court Jurisdiction in Divorce Cases

Fri, 19 Apr 2024 16:00:04 GMT

How do you know where to file your family law case?

"Personal Jurisdiction" refers to a court's authority or power over a particular person. Put another way, it is the authority that a court has to make decisions and judgments regarding individuals involved in a legal dispute, such as a divorce (also referred to as a Dissolution of Marriage). A court has to have personal jurisdiction over parties to make decisions involving them and judgments against them. Personal jurisdiction can be a complicated issue, especially if the responding party, also known as the “respondent,” does not live in the State of Colorado or cannot be located. There are few different ways a court can exercise personal jurisdiction over someone and all issues (status of the marriage, property division, spousal maintenance, child support, and parental responsibilities) in Colorado divorce matters:

1. The parties can file a joint Petition for Dissolution of Marriage, also referred to as a Co-Petition for Dissolution of Marriage. Using a Co-Petition, both parties agree that the Court has personal jurisdiction over them.

2. After the filing spouse files a Petition for Dissolution of Marriage, the respondent can sign a Waiver and Acceptance of Service. A Waiver and Acceptance of Service means that the respondent is voluntarily entering into the case without being served with the initial paperwork and agreeing that the Court has personal jurisdiction over them.

3. The respondent can be personally served in the state of Colorado, even if the respondent does not live in Colorado. If the respondent is served in Colorado, the Court has personal jurisdiction over that party.

a. We will write a separate blog post regarding “service” and the requirements for proper service.

4. Under C.R.S. § 13-1-124(1)(e), if the parties maintained a “matrimonial domicile” in Colorado, the respondent can be personally served in another state and Colorado will acquire jurisdiction over all aspects of the divorce, so long as one party to the marriage continues (without interruption) to be domiciled in Colorado. The matrimonial domicile is the last place that the parties lived together as a married couple.

5. The respondent can consent to personal jurisdiction in Colorado or otherwise waive any arguments related to personal jurisdiction. For example, if a respondent is served outside of Colorado but then files a response to the Petition for Dissolution of Marriage in Colorado without specifically asserting that the Colorado court lacks personal jurisdiction, then the respondent waives any arguments regarding personal jurisdiction, and Colorado can make decisions regarding all aspects of the divorce.

There are also some additional ways a court can exercise personal jurisdiction over the respondent, but in these situations, the court can only make decisions regarding some of the issues in a Colorado divorce matter:

1. Under C.R.S. § 14-10-107(4)(a) and C.R.C.P. 4(g), with court approval and after making diligent efforts to locate and serve the respondent, the filing party can serve the respondent by publication. However, service by publication only gives the court jurisdiction over the status of the marriage and property located in Colorado. Service by publication does not give the court jurisdiction to resolve custody issues.

2. The respondent can be served in another state. However, serving the party in another state does not give the court personal jurisdiction over the respondent by itself. In this situation, the court only has jurisdiction over the status of the marriage and does not have jurisdiction over issues such as maintenance and distribution of property. Child support and parental responsibilities determinations may be made if jurisdiction is allowed by the Uniform Interstate Family Support Act (UIFSA) and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).

In all of these scenarios, remember that one party has to be domiciled in Colorado at least 91 days prior to filing for a Dissolution of Marriage case in Colorado and any children involved in the case must be domiciled in Colorado at least 182 days prior.

Failure to satisfy these conditions may result in a court lacking personal jurisdiction, making any judgment issued by that court invalid. Establishing personal jurisdiction is a fundamental aspect of a fair and lawful process, ensuring that individuals are subject to the authority of a court only when appropriate and just. If you are considering filing a Dissolution of Marriage action and you are unable to satisfy one of the conditions set forth above, you may have to consider filing your case in the state where your spouse resides. If you have questions regarding personal jurisdiction, contact the attorneys at Opfer | Campbell | Beck P.C. for a free 60-minute consultation at (303) 791-0995.

Divorcing With Children: Top Questions To Ask

Tue, 26 Mar 2024 20:15:00 GMT

When consulting a family law attorney, what questions should you be asking?

In our family law consultations, potential clients often ask us what questions they should be asking. We completely understand that, for most people, divorce and discussions about children's issues are completely new. To make this process a little easier, we have compiled a list of the most common questions we receive, as well as questions we recommend asking any attorney you consult with as you navigate a potential dissolution of marriage with children:

Decision-Making and Parenting Time Rights:

What will the decision-making arrangement be like?
How is parenting time determined?
What information is relevant to determining parenting time and decision-making responsibilities?

Financial Matters:

How will assets and debts be divided?
What is the process for determining child support and/or maintenance?
Are there tax implications related to divorce that I should be considering?

Impact on Children:

How will the divorce affect the well-being of the children?
Are there resources for supporting children through the emotional impact of divorce?
What tools are available if we are unable to reach agreements regarding custody of the children?

Legal Process:

What are the steps in the divorce process and how is it initiated?
How long does the divorce process typically take?
What legal representation is needed, and how do I find the right attorney?

Living Arrangements:

Where am I able to live during and after the divorce?
Is relocation with the children allowed?
How will the living arrangements impact the children's stability?

Communication and Co-Parenting:

What strategies can be used for effective communication with the ex-spouse?
How can co-parenting be successful?
What tools or resources are available for co-parenting?

Emotional and Mental Well-being:

How can parents cope with the emotional challenges of divorce?
Are there support groups or counseling services available?
What steps can be taken to prioritize mental health during and after divorce?

Educational and Healthcare Decisions Regarding Children:

How are decisions about the children's education and healthcare made?
What information must be shared between co-parents regarding these matters?

Rebuilding Life After Divorce:

What steps do I need to take to protect myself financially after my divorce?
Do I need to update my estate plan after divorce (Hint: YES, you do)?
How can parents maintain a healthy work-life balance?

Mediation and Alternative Dispute Resolution:

Is mediation an option for resolving disputes instead of litigation?
How does mediation work?

Stay tuned for blogs from our office as we respond to all of these important questions!

What is probate, and how do I avoid it?

brandon@ocblawgroup.com (Brandon Campbell) — Fri, 15 Mar 2024 13:15:00 GMT

Estate Protections Series: Part 3

Most of us hear the horror stories of “probate," but often do not understand what it is or how to avoid it. Probate, simply, is an area of law. It governs a person's affairs and happens when a person becomes incapacitated or dies.

Incapacity + Probate

Take, for example, an elderly parent who suffers from Alzheimer’s Disease. Somebody needs to be able to care for this parent, but nobody can take over by default. A bank will not let you walk in and take money out of someone else's account. The only solutions are (1) a court order, or (2) a Power of Attorney. If this happens and there is no POA, the next person to help must be appointed by a probate judge. This happens with a “Conservatorship” (financial decisions) and/or a “Guardianship” (medical decisions).

How do I avoid this? Create Powers of Attorney and Medical Directives! These documents appoint your best people to assist you when you need it. They also instruct financial institutions and medical providers about what to do for you. POAs and Medical Directives exist your entire lifetime, work everywhere, and you can update them as much as needed.

Death + Probate

Let’s assume instead that the parent has died and left behind a house, bank account, etc. in their name. If any of those titles were only in their name, nobody can manage the assets. Titles become stuck in someone's name, and we use probate to "un-stick" them. In probate, the court appoints a “Personal Representative” (Executor) to take possession of the property and distribute it. This can happen either under the terms of a Will or the default laws for inheritance ("intestacy").

How do I avoid this? Create an estate plan! There are multiple ways to set up an estate plan. You might structure “beneficiary designations” on all your assets to transfer quickly after death. Or you might set up one or multiple trusts to hold and manage assets after you die. How you plan depends on your goals, your concerns, and your assets, but remember you have options!

What does this mean for my loved ones?

In Colorado, the cost of probate varies, but can reach thousands of dollars after little time. These costs are on top of time, effort, and court appearances. Most important, probate also opens the door to conflict. If a person becomes incapacitated or passes away without a plan, family members can fight. Disputes happen about who should make decisions, how to divide inheritance, and other issues. But if probate never happens, these disputes are avoidable. Do not become a horror story!

Probate always seems scary, for good reason, but you can avoid it. The attorneys at Opfer | Campbell | Beck P.C. are here to provide you a NO-COST, NO-OBLIGATION estate planning consultation. Our office will provide you education, resources, and a plan of action. For more information, contact our office today!

Brittany Spears Got An Annulment - Can I Do The Same?

Mon, 04 Mar 2024 16:00:00 GMT

What exactly is an annulment?

You may be familiar with Britney Spears’s infamous 55-hour marriage that ended in annulment, but how was Britney Spears able to successfully obtain an annulment? Annulment versus divorce is a commonly misunderstood area of the law. For those that aren’t familiar with the legal process of a divorce, once a divorce is finalized, the marriage is legally dissolved, and both parties are considered single individuals. On the other hand, an annulment is a legal declaration that the marriage was never valid from the beginning. With an annulment, the marriage simply didn’t exist. In Colorado, an annulment is referred to as a “declaration of invalidity” of the marriage, but we will call it an annulment for the purpose of this blog.

GROUNDS

Grounds for Divorce: Many states, Colorado included, offer no-fault divorce, meaning that a spouse does not need to prove fault or wrongdoing on behalf of their spouse to end the marriage. Instead, to obtain a divorce, the Court must simply find that the marriage is irretrievably broken. Given that Colorado offers no-fault divorces, obtaining a divorce can often be the simpler method of ending a marriage.

Grounds for Annulment: Annulments have a different and more complex standard that must be met. Annulment is typically based on specific grounds that render the marriage void or voidable. A void marriage is considered legally invalid from the beginning because it was entered into illegally. A voidable marriage is a marriage that is considered legally valid unless one of the parties involved takes legal action to have it declared void under certain circumstances. Grounds for annulment in Colorado are as follows under Colorado Revised Statute § 14-10-111(1):

Voidable Marriages:

· Consent: A marriage could be annulled if a party lacked capacity to consent to the marriage at the time the marriage ceremony occurred, either because of mental incapacity or because of the influence of alcohol, drugs, or other incapacitating substances;

· Consummation: A party lacked the physical capacity to consummate the marriage by sexual intercourse and the other party did not know of the inability at the time of the marriage;

· Age: A party was under the age as provided by law and did not have the consent of his parents, guardian, or judicial approval (as provided by law) to enter into the marriage;

· Fraud: One party entered into the marriage in reliance upon a fraudulent act or representation of the other party, and the fraudulent act or representation goes to the “essence” of the marriage;

· Duress: One or both parties entered into the marriage under duress exercised by the other party of a third party;

· Jest or Dare: One or both parties entered into the marriage as a jest (joke) or dare.

Void (Illegal) Marriages:

· A marriage entered into prior to the dissolution of an earlier marriage of one of the spouses;

· A marriage between an ancestor and a descendant or between a brother and a sister, whether the relationship is by the half of the whole blood;

· A marriage between an uncle and a niece or between and aunt and a nephew, whether the relationship is by the half of the whole blood, except as to marriage permitted by the established customs of aboriginal cultures;

· A marriage which was void by the law of the place where such marriage occurred.

The short duration of the marriage was not the sole reason Britney Spears was able to get her marriage annulled. She had to have additional grounds to do so. While the specific grounds for obtaining an annulment vary by state, it’s likely that Britney Spears was able to obtain an annulment on one of the grounds set forth in the “Voidable Marriages” section above.

TIMING AND INITIATION OF CASE

The timing of a divorce and annulment tend to be different. Divorces can be sought at any point during the marriage and initiated by filing a Petition for Dissolution of Marriage. While an annulment can be sought by filing a Petition for Declaration of Invalidity of Marriage, annulments are usually sought early in the marriage upon the discovery of one of the grounds or issues noted above. In fact, there are specific deadlines that must be met to seek an annulment under C.R.S. § 14-10-111(2):

Voidable Marriages:

· The aggrieved spouse must initiate an annulment within 6 months of obtaining the knowledge that their marriage was entered into based on lack of capacity to consent (either because of mental incapacity or the influence of alcohol, drugs, or other incapacitating substances), fraud, duress, or a jest/dare.

· A spouse must initiate an annulment within one year of learning of the lack of physical capacity of the other spouse to consummate the marriage.

· For annulments with a spouse that was underage at the time the marriage occurred, the underage spouse or his/her parent or guardian must initiate an annulment within 24 months of the date the marriage was entered into.

Void Marriages:

Under C.R.S. § 14-10-111(3), an annulment based on the grounds set forth under “Void Marriages” can be sought by either party, by the legal spouse in the case of a bigamous, polygamous, or incestuous marriage, by the appropriate state official, by a child of either party at any time prior to the death of either party, or prior to the final settlement/closing of the estate of either party or prior to six months after an estate is closed.

If the marriage occurred in Colorado, an annulment can be initiated at any point during the time periods set forth above. If the marriage was entered into outside of Colorado, at least one of the spouses must have been a Colorado resident for 30 days prior to the commencement of the annulment proceedings. This standard is different from that required for a divorce. To initiate a divorce in Colorado, one spouse must be domiciled or a resident of Colorado for at least 91 days prior to commencing the divorce.

CHILDREN, PROPERTY, AND FINANCIAL MATTERS:

When going through a divorce, the court can enter orders related to child custody/decision-making, parenting time, child support, spousal maintenance (alimony), and property division. However, if an annulment declares that the marriage is void and therefore did not occur, issues related to children and property may still need to be resolved, especially if the parties’ acquired assets or had children during the purported marriage. With an annulment, the Colorado courts are still able to make decisions and enter orders regarding these issues. Although, personal jurisdiction over the parties will be necessary for the court to do so, which is a topic we will discuss in a future blog.

When making decisions regarding the allocation of parenting time and decision-making, the court is going to consider the best interests of the children as set forth in C.R.S. § 14-10-124(1.5)(a) and (b), regardless of whether it’s a divorce or an annulment. In either case, the Court will also apply the child support standards set forth in C.R.S. § 14-10-115. While a Court will address property division and spousal maintenance in a manner that is fair and equitable and without considering fault, there are certain circumstances in annulment cases where a court may decline to award spousal maintenance or an equitable division of marriage property, such as in cases where fraud has occurred. This is different from a divorce where the court does not consider fault and instead focuses primarily on an equitable and fair division. However, given that these issues are addressed in both annulment and divorce cases, an annulment could take the same amount of time to finalize as a divorce would, meaning that receiving an annulment as quickly as Britney Spears should not be expected.

Given the complex nature of annulments and the difficulty that can come with proving that grounds exist for the Court to annul a marriage, annulments (a/k/a declarations of invalidity) aren’t common. However, if you are considering a declaration of invalidity or divorce in Colorado, it is advisable to consult with a family law attorney who can provide guidance based on your specific situation. Contact the attorneys at Opfer | Campbell | Beck P.C. for a free 60-minute consultation at (303) 791-0995.

What does an estate plan cost?

brandon@ocblawgroup.com (Brandon Campbell) — Fri, 16 Feb 2024 18:44:15 GMT

Estate Protections Series: Part 2

"I know that I need an estate plan."

"I know an estate plan is not only a Will."

"I don't want my loved ones having to deal with probate."

" But what does an estate plan cost?? "

Understandably, this is the most common question we receive. Estate planning is the sum of many moving parts, so how do attorneys bill for the service?

Planning Considerations

Every case is unique. Each client has different intentions, different assets, different concerns, and different outcomes. Most of us might assume attorneys meet a client, gather basic data, and fill out generic templates. Planning, though, involves so much individual counseling for each client, including:

Identifying family structures, concerns about heirs, and the best people for key roles;
Contingencies if heirs die;
Contingencies if named "agents" (e.g. Powers of Attorney) die or cannot serve;
Plans, wishes, and concerns for specific assets;
Tax considerations;
Asset planning considerations;
Planning for blended families;
Planning for heirs' future spouses;
Planning for substance abuse issues;
Planning for special needs; and
SO MUCH MORE.

Estate Planning Process

Beyond just identifying issues and counseling clients, the planning process involves several steps. Attorneys need to draft, update, and finalize multiple legal documents. Most attorneys hold a meeting to teach clients how to read and understand the documents, then spend a significant time working through their questions and revisions. Once signed, an estate plan is "funded" with assets, which requires retitling. Throughout this process, staff need to manage scheduling, billing, files, plan portfolios, and communications with any third parties. Finally, when the plan is finalized, the law office should check in every year about any changes to the plan.

So what does it cost?

Because there are so many unknowns, attorneys usually structure flat fees for planning. A flat fee allows clients to ask as many questions or take as much time as they need to go through the process, without worrying about extra invoices. Determining that flat fee involves looking at several factors. At Opfer Campbell | Beck, we base our estate planning fees on more than 10 factors, including:

Do you have an existing plan, or do we need to create one from scratch?
Are we planning for one person or a couple?
Will the plan avoid probate by using beneficiary designations or by using a trust?
Do we have to plan for more complicated issues? This includes businesses, rental properties, and special needs heirs.

Our office calculates fees from a base rate, and then adjusts those fees up OR down based on the factors of a case. Discounts we provide are for active military members, veterans, emergency responders, and teachers! Because of all this, cases can range from $375 to $5000, and that is why it is so hard to set one rate that applies to everyone.

We provide all intakes with a NO-COST, NO-OBLIGATION consultation for up to 60 minutes. At the consultation, we typically identify two planning options and quotes. And most important, we *never * ask you to begin services at the consultation. If you would like to set a consultation, contact us today!

Navigating New Year's Resolutions in Co-Parenting

ashleigh@ocblawgroup.com (Ashleigh Beck) — Mon, 12 Feb 2024 16:59:34 GMT

Building a Stronger Future Together

The start of a new year often brings with it a sense of reflection and the opportunity for personal growth. For co-parents, it is both challenging and rewarding to establish new routines and resolutions to make your co-parenting relationship more productive. In this blog, we will explore ways in which co-parents can work together to set and achieve meaningful resolutions which ideally foster a healthier and more collaborative co-parenting relationship.

Reflecting on the Past : Before diving into new resolutions, it's essential for co-parents to reflect on the past year. What worked well in the co-parenting dynamic? What challenges arose, and how were they addressed? Reflecting on these aspects can provide valuable insights into areas that may need improvement and set the foundation for constructive goal-setting.

Effective Communication : One common resolution for co-parents is to enhance communication. Clear and open communication is the cornerstone of successful co-parenting. Setting a resolution to communicate more effectively, whether through regular check-ins or utilizing communication tools, can help prevent misunderstandings and ensure that both parents are on the same page when it comes to parenting decisions. We often recommend utilizing communication tools such as Talking Parents, Our Family Wizard, or in high conflict cases, Civil Communicator.

Creating a Shared Calendar : A practical resolution for co-parents is to establish and maintain a shared calendar. This can include important dates, school events, extracurricular activities, and visitation schedules. Utilizing digital tools or co-parenting apps can make this process more streamlined, reducing the likelihood of scheduling conflicts and providing a centralized place for both parents to stay organized. Most of the communication tools referenced above do have shared calendar features, though families also often use google calendar or other comparable calendars.

Prioritizing Flexibility : Flexibility is a key component of successful co-parenting. Resolving to be more flexible in accommodating each other's schedules and unexpected changes can contribute to a more harmonious co-parenting relationship. This may involve being open to adjustments in visitation schedules or finding alternative solutions when unexpected situations arise. Remember to keep your child’s needs and wishes at the forefront here – your child often benefits from you being flexible, even if it feels like the other parent isn’t as flexible with you.

Focusing on the Child's Well-Being : Ultimately, co-parenting resolutions should center around the well-being of the child. Both parents can commit to fostering a positive and supportive environment for their child, both emotionally and physically. This may involve attending parenting classes together, seeking guidance from a co-parenting counselor, or finding common ground on important parenting decisions.

Embarking on a new year as co-parents provides an opportunity for growth, understanding, and collaboration. By setting thoughtful and realistic resolutions, co-parents can contribute to the development of a more resilient and cooperative co-parenting relationship. Whether it's improving communication, embracing flexibility, or prioritizing the child's well-being, the journey of co-parenting resolutions can lead to a stronger foundation for the entire family.

2024 Corporate Transparency Act

brandon@ocblawgroup.com (Brandon Campbell) — Thu, 08 Feb 2024 19:58:59 GMT

Current Guidelines for Business Entities

On January 1, 2024, the federal Corporate Transparency Act (CTA) took effect, extending nationwide and implementing a new agency called the Financial Crimes Enforcement Network (FinCEN). The purpose of this notice is to provide you key information about the CTA, reporting obligations to FinCEN, and general guidelines for next steps. If you have questions about this law or need assistance with your registrations, please do not hesitate to contact our office.

Who does the CTA affect? Currently, the CTA affects an overwhelming majority of entities in the United States. Unless revised later, “Reporting Entities” that must register include:

Limited Liability Companies (* including Single-Member LLCs and holding companies set up for rental properties and investments )
General Partnerships and Limited Liability Partnerships
Corporations (regardless of whether operating as C-Corp or S-Corp)
Any nonprofit organizations or associations that do not file taxes as 501(c) entities (for example, Homeowner Associations that file under Section 528 must comply with the CTA)
Any entity “ created by the filing of a document with a Secretary of State or any similar office under the law of a State or Indian Tribe.”

*Sole proprietorships do not need to register unless the proprietorship filed with the Secretary of State.

What entities are exempt from the CTA? Currently, there are 23 categories of entities that do not need to register, including government agencies, financial / securities / insurance institutions, utility companies, and banks. As a general rule, privately held companies not operating in the financial sector will need to register, but for a complete list of exempt entities, please review the FinCEN Small Entity Compliance Guide linked below.

Why would I need to register? FinCEN requires every “Beneficial Owner” of an entity to register “Beneficial Owner Information” (BOI) about the company. This includes each owner’s full legal name, personal / residential address, birthday, and a copy of a current and valid government-issued identification, such as Driver’s License or passport.

Beneficial Owners currently include individuals holding at least 25% ownership in an entity, and/or individuals exhibiting “substantial control” over the entity, even if that person does not have any ownership (for example, a director of a corporation, an appointed legal manager, a fractional officer). The determination of “substantial ownership” is subjective (right now), so we recommend you err on the side of caution and include BOI registrations for individuals who could possibly qualify.

Beneficial Owners do not include trusts holding an interest (but the Grantors and/or Trustees of the trust will need to file BOI individually), as well as corporate entities holding an interest in another company (because that other corporate entity will have its own CTA registrations).

How will BOI be used, and who can access it? The purpose of FinCEN is to collect data for Reporting Entities, in an effort to combat corporate financial crimes. As currently structured, any BOI will only be accessible by the government agencies and law enforcement, court systems, and financial institutions (with consent from customers). If you submit BOI for any companies, your information will not be accessible by the general public or even by other members of that company.

When do I need to register? There are two key deadlines for CTA registration:

Entities created *before* January 1, 2024 : BOI must be submitted by December 31, 2024.

Entities created January 1, 2024 or later : BOI registrations must be completed within 30 days of the entity formation. In addition, both Beneficial Owners and the “Company Applicant” must submit BOI. For example, if your company was registered by an attorney or CPA, they need to submit their information in addition to yours, within the 30-day window.

What happens if my information changes? Currently, the CTA requires any Beneficial Owner changes, such as a new home address, to be submitted to FinCEN within 30 days of the change.

What happens if I fail to comply? There are currently severe penalties for failure to comply. FinCEN can impose fines of up to $500 per day, up to a maximum $10,000. Additionally, the law currently authorizes up to two years’ jail time for noncompliance. It is ** absolutely critical ** that if you have questions or need assistance with any registration, you contact someone to assist you.

How do I complete BOI registration? The best place to start is by visiting www.fincen.gov/boi . The website has numerous resources, and two electronic options for submitting BOI. Importantly, once an entity submits its initial report (including a single owner submitting their BOI), then any subsequent submissions (such as the next owner filing their own report) must be made through the “Update” report option. If any information changes about the Reporting Entity or about any Beneficial Owner, then there is a separate link to “Correct” a report.

As of now, FinCEN does not contain any options to notify that a company has dissolved, or that a Beneficial Owner is no longer an owner. We expect these changes to roll out as FinCEN improves the filing systems.

Is there a fee to file with FinCEN? NO.

Can Opfer | Campbell | Beck P.C. help with BOI registration? YES. Our office is happy to assist you with any necessary registrations, or simply if you have questions about complying with the CTA. To handle any filings, we will assess a fee of $100.00 for the initial report per Reporting Entity, and then $50.00 for any additional reports for that same Reporting Entity (e.g. to submit additional reports for other owners). If you have multiple Reporting Entities, we will assess $100.00 for the initial report for each.

If you want assistance, you will need to provide us the following:

Reporting Entity legal name (as reported on tax returns) and EIN, if our office did not set up the entity for you

For all Beneficial Owners:
Full legal name;
Home address (cannot be a P.O. Box);
Birthday;
Full Social Security Number;
Copy of Driver’s License or U.S. Passport; and
Description of ownership interest held in the entity (such as ___ stocks of a corporation, or ___% of an LLC).
**Please do not email this sensitive information. Our office can provide you a secure portal to upload any files to us, and you may also provide key information by phone.

Save Your Transcripts!! When you complete any BOI registrations, including submitting updates, the website will provide you a PDF transcript that you can save to confirm your submission. We highly, highly recommend you save this transcript somewhere, and provide it as needed to any professionals who can hold a copy for you (such as your accountant or attorney). If there is ever a question later whether you complied, the transcript will be key to proving you did.

Is there anything else I should know? Even though it was enacted in 2021, the CTA only became effective in January 2024, and the systems and rules are still very new. We expect changes and clarifications to happen over the next several months, including possibly more entities becoming exempt from filing. The most important thing to understand is your specific deadline to file, whether being 30 days or by December 31, and guaranteeing that you complete your BOI registrations by the deadline. Additionally, there may be specific issues related to your business, including who qualifies as a "Beneficial Owner" and whether the entity is exempt from reporting. This information is very general and subject to change, so we recommend you review the Small Entity Compliance Guide below and stay informed about the status of this law.

Small Entity Compliance Guide

How To Choose A Family Law Attorney

Thu, 25 Jan 2024 19:58:28 GMT

What should you consider before retaining counsel?

Making the decision to proceed with a divorce or family law matter is a very difficult and emotional process. The idea that you need to think about the division of your assets, sharing time with your children, and your financial future requires a great deal of consideration and overcoming a lot of fear. “Family Law Attorneys” exist to guide you through this process. But with so many options out there, how do we choose the right fit? Here are some tips we hope can help you in starting this journey:

Experience

When selecting an attorney, you want to know you’re in capable hands. Whether your case involves a divorce (“dissolution of marriage”), custody (“allocation of parental responsibilities”), or child support, selecting an attorney with experience is crucial to ensuring effective representation and achieving favorable outcomes. There are many different factors to consider when determining if your prospective attorney has the relevant family law experience. The best place to start is in a consultation with the potential attorney and reviewing the following information with them. Remember that *you are the client*, and you decide who provides these important services to you. Interview at least 2 options, so you can see how different offices operate.

Opfer | Campbell | Beck P.C. offers a free 60-minute consultation, which will allow you to meet with one of our attorneys to discuss the facts and legal considerations in your case. During a consultation, you can receive an analysis of the legal issues and understand the attorney’s approach to handling cases, their strategies, and trial experience. Our attorneys collectively have over 35 years of legal experience, with a vast majority of that dedicated to family law issues.

Communication

An attorney that is responsive and keeps you informed about the progress of your case can help you to feel supported and confident. Ask your prospective attorney about their communication policies because timely communications are essential for a successful attorney-client relationship. When determining whether to hire someone, also consider how well they explained legal concepts and their ability to actively listen to the details you explain. Find an attorney who provides you with valuable education, who takes the time to answer your questions thoughtfully and thoroughly, and who gives you confidence this process will be completed efficiently.

Transparency

Find an attorney that is going to be honest with you about potential outcomes and issues in your case—both good and bad. Evaluate whether the attorney takes the time to explain legal concepts in a way you can understand, and who provides a realistic assessment of your case. Do not hire someone who promises that you will receive everything you want in a case, exactly the way you want it. Staying well-informed about your situation enables you to anticipate and manage potential challenges, providing a sense of preparedness during this difficult phase of your life.

Confidence

Consider whether your prospective lawyer is prepared to advocate for your interests, even in the face of unforeseen challenges and high stress situations. A confident lawyer can assertively present a case and remain calm and composed under pressure, making well-reasoned decisions and adapt to unexpected developments with ease. Keep in mind that confidence is not synonymous with arrogance. Seek an attorney that operates with ethical integrity and adheres to a strong sense of professional and moral standards.

Teamwork

Hiring an attorney that works as part of a team offers several advantages and can enhance the overall quality of representation. Attorneys that work in a team environment can collaborate with diverse skills, knowledge, and perspectives. Working with a team also provides a broader range of resources, such as paralegals and administrative staff that can assist with tasks to lower costs. At Opfer Campbell Beck P.C., we have 5 talented attorneys, 3 paralegals, and a law clerk to assist on cases and enhance efficiency both with billing and the progress of the case.

Commitment to Your Case

Your lawyer should prioritize your needs and work towards achieving the best possible outcome for you. They should be dedicated to representing your interests and diligent in their work, including conducting thorough research, preparing well for proceedings, and paying attention to details that may affect the outcome of your case.

Compatibility

It is essential to select an attorney with which you feel comfortable and confident working. The attorneys at Opfer | Campbell | Beck P.C. recognize that family law cases can be taxing. During these difficult situations, it’s important to have an attorney that you work well with and who you believe has a level of empathy, understanding, and commitment to your case. While it’s beneficial to evaluate the factors in this blog when selecting a family law attorney, you shouldn’t ignore your instincts about the person who might represent you.

Professionalism

Find a lawyer that conducts themselves in a manner that reflects positively on both them and their clients. This includes dressing appropriately, maintaining a respectful demeanor, and treating all parties with common courtesy.

Family Law Specialization

It is completely acceptable for attorneys to practice more than one area of law, but we often hear the saying, “an expert at all is an expert at none,” and we believe there is some truth to that. When navigating complex family law issues, your attorney should have specialized knowledge and expertise in the relevant area of law pertaining to your case. Attorneys that specialize tend to be more knowledgeable in their preferred area of practice, because their experience is more expansive. If a firm has multiple attorneys, a good rule of thumb is that your attorney is specialized specifically to what you need, even if other attorneys practice in other areas.

Fees & Billing

When engaging in a consultation with a prospective attorney, speak with them about your options for paying fees during your case. Every law office has its own structure, fee schedule, and payment options. Ask the attorney about their billing practices, including their hourly rates, retainer requirements, and invoicing. At Opfer | Campbell | Beck P.C., we understand that attorney fees may be an unanticipated cost, and determining how to pay these fees can be challenging at times. In addition to a much lower retainer structure than usual, we also now offer Affirm as a payment method, which is a “buy now, pay later” lender.

To assist you through the process of selecting a family law attorney, please find a downloadable guide here and consider taking the guide with you to any consultations. Remember, finding the right lawyer involves a combination of legal knowledge, experience, and personal qualities that align with your needs and preferences. The attorneys at Opfer | Campbell | Beck P.C. are here to assist you through your family law case, and you can schedule a free consultation by contacting our office at (303) 791-0995.

Is An "Estate Plan" Just A Will?

brandon@ocblawgroup.com (Brandon Campbell) — Tue, 09 Jan 2024 16:43:06 GMT

Estate Protections Series: Part 1

Most people have the misconception that making an "estate plan" means having a Will. While a Last Will is one document involved, you are not creating an actual “plan." So, what do you actually need to avoid probate and make things easier for your loved ones?

Planning for Incapacity

Estate planning is a process that prepares you for two important stages. The first, "incapacity," happens when an issue prevents you from managing your own affairs (e.g. Alzheimer’s Disease). Without planning, the next people to help you need to be approved by a judge first. This happens in probate cases called "Guardianship" and "Conservatorship." You can avoid this round of probate by creating Powers of Attorney. A “General Durable Power of Attorney” allows someone to step in and manage your finances. Separately, a “Medical Durable Power of Attorney” allows someone to manage your healthcare. Also, "Medical Directives" do not address probate but make things easier for loved ones. A HIPAA Authorization ensures your loved ones have access to speak with doctors, while a Living Will makes important end-of-life decisions in advance.

Planning for Death

In the second stage of estate planning, a person plans for what happens after they die. A Last Will serves as a set of final instructions, but A WILL DOES NOT AVOID PROBATE. There are a couple methods people use to avoid probate. One involves using beneficiary designations on assets, such as "Transfer On Death" forms. The other is by using a Revocable Living Trust. The best option for you will depend on your financial and family circumstances.

The Estate Planning Process

An attorney’s role in planning is to help you understand your options, your risks, and your best process. An attorney should also handle as much of the planning as possible. They should draft your documents, reviewing them with you, assisting you with edits and questions, and then help you sign. Once you create a plan, the attorney should help retitle assets to avoid probate (“funding”). Finally, you should receive both original and digital copies of the plan. This allows you to store them in more than one location and share them with key people. All these steps are necessary, but people often neglect parts because they do not know better. This results in you not having a complete "plan."

Next Steps

It may seem daunting, but estate planning can be simple, quick, and painless, and the majority of this process should be managed by your attorney (that is why you hired them!). To learn more, please reach out to the attorneys at Opfer | Campbell | Beck P.C. for a free consultation. For more information about protecting your estate, stay tuned for the next Estate Plan Protections Series!