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Commentary and Analysis Regarding Colorado Law

If You're Going to do it - Is it Better to Divorce in 2018 or 2019?

Divorce

One of the changes in the new “Tax Cuts and Jobs Act” (TCJA) affects couples contemplating a divorce where one party will likely have to pay alimony (maintenance in Colorado) to the other party.  Today, the payor of maintenance receives a tax deduction and the payee pays taxes on that income.  The new tax law eliminates the tax deduction for the payor of maintenance and eliminates it as taxable income for the payee. 

If you file for dissolution in 2018 and get a decree of dissolution with a maintenance obligation before the end of 2018, you will have the benefit or disadvantage, of the existing law.  But in 2019, the new tax law takes effect.  

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Parocha v. Parocha

Eve Canfield

Eve Canfield is a board member of Safe Shelter of St. Vrain Valley.  She wrote an amicus brief on behalf of five nonprofit organizations in support of a victim of domestic violence that left her home state and came to Colorado with their child, in Parocha v. Parocha, No. 17SC406. The amicus brief contributed to the Supreme Court’s Opinion on May 21, 2018, which established a major advancement in the protections available for victims of domestic violence and their families. 

A permanent protection order was granted by county court, but the District Court reversed, stating there were insufficient contacts to establish jurisdiction over the non-resident husband.  The Supreme Court considered whether and when a civil protection order is available to a victim of alleged domestic abuse who comes to Colorado seeking refuge from a non-resident partner.

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Water Butts

Eve Canfield
Water Butt

According to http://www.treehugger.com, the UK calls rain barrels “water butts”. I was suspicious, but when I “Googled” water butts, a whole list of sites for rain barrels came up, so yes, rain barrels are really called water butts in the UK. The reason for this article is that until recently, rain barrels were illegal in Colorado. In Wisconsin where I grew up, my grandmother had rain barrels and used the water for flower boxes and also to wash her hair. She said it made her hair soft and slowed down the process of going gray. As I remember her now, she could have been right.

The Colorado Division of Water Resources website tells us that the State of Colorado claims the right to all rain that falls within the state. That is why rain barrels were illegal in Colorado until August 10, 2016. Practically speaking, there was concern that the collection of rain water would have an adverse effect on owners of senior water rights by taking too much water out of the natural water cycle. In 2009, there was Senate Bill 09-080, which allowed the use of rain barrels in limited circumstances, but it wasn’t until this year that the use of rain barrels or “rooftop precipitation collection” systems were made legal for most of homeowners in Colorado.

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For the Love of Spot – Pet Trusts in Colorado



Submitted by Eve Canfield Spot is my neighbor’s dog. There are few people Spot doesn’t want to bite. Because I fostered her as a rescue puppy, I am one of the lucky and very few humans that she loves unconditionally. If anything happened to Spot’s family, she would be welcomed into my home. She knows the way quite well. For a large number of the over 2.7 million animals euthanized in the U.S. every year, there is no home to go to when their owner (or “guardian” in Boulder) dies. Apparently we can partially thank Leona Helmsley, according to an article in the UMKC Law Review, for the establishment of enforceable Pet Trusts in Colorado and 37 other states. Leona left $12 million for the care of her dog, Trouble, in trust. In a legal sense, dogs and cats are personal property and are left to heirs or beneficiaries, who may or may not want to or be able to, care for a relative’s pet. It often takes weeks to resolve issues of personal property, but you can’t just store a pet with the silver until somebody makes a decision. A Pet Trust, however, can take immediate effect upon death to provide for your pet’s care.
Trusts are typically established with designated property for specific people. Some trusts are established for a particular purpose, such as a charitable trust. Pet Trusts are often called “honorary trusts.” This is because the pet can’t enforce the provisions of a trust to take them for a walk or to give a good scratch (although many pet owners might disagree). Colorado Revised Statute § 15-11-901, provides for an enforceable trust for the care of a designated domestic animal or pet and any of the offspring in gestation. It is interesting and unusual that this statute exempts a Pet Trust from the application of the rule against perpetuities (worthy of a separate explanation) and it also specifically allows extrinsic evidence to be admitted in the event a court has to interpret a Pet Trust and determine the intent of the person who transferred property into a trust for the pet’s care. There are several options available to provide for the future care of a pet, such as a simple provision in your will for a designated person to care for your pet and with a designated amount of money. You can also set up a separate trust with a formal trust document and designate property to fund it. You can also obtain a life insurance policy to fund the trust upon your death. So if you don’t have $12 million like Leona Helmsley or a neighbor who also loves your dog, like Spot does, you can still provide for the care of your pet when you’re gone.

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DO YOU GET COMPENSATION FOR LOSING YOUR LAND IN AN ADVERSE POSSESSION CASE?


Submitted by Eve I. Canfield

After the famous case in Boulder District Court, McLean v DK Trust, Colorado‘s legislature revised the statute on adverse possession. (C.R.S. § 38-41-101). In addition to making it a little more difficult to prove all of the elements of adverse possession for the party claiming ownership against the record owner, the revised statue allowed for some compensation to the losing party at the discretion of the judge. Compensation for the property itself is based upon the actual value by the county assessor for the most recent property tax valuation. Compensation may also be in the way of an equitable apportionment of the actual tax value of the property being lost if that parcel was not already taxed separately from the losing party’s property. A losing party can also be reimbursed for all or part of the property taxes and other assessments that were paid by the losing party for the last eighteen years before the entry of a final order giving title to the adverse possessor. This revision provides some relief to property owners losing title to a portion of land that has been proven to be adversely possessed by another. The only problem that remains, is that this revision allowing for compensation is only applicable in actions in which title vests with the adverse possessor on or after July 1, 2008, meaning the full 18 year requirement for adverse possession has been fulfilled before July 1, 2008. If title is shown to vest in the adverse party before July 1, 2008, this compensation provision is not available to you if your land if taken through an adverse possession action.

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LEGISLATURE CONTINUES PATTERN OF STRONGER REGULATION OF HOAs


Submitted by Eve I. Canfield

The Colorado Common Interest Ownership Act (“CCIOA”), C.R.S. § 38-33.3-101, et seq, was amended in 2013.  Two statutory amendments were made by HB 1276 and HB 1277. 

 HB 1276 has been referred to as the “HOA Debt Collection Bill”.  The legislature has continued to define and control collection procedures of HOAs to address what the public sees as unfair and abusive collection procedures by HOAs.  While the prior SB 100 required HOAs to adopt collection policies and procedures, HB 1276 goes further in stating specific requirements for an HOA’s collection policy.  HOA collection policies will have to be 1276-compliant, or the HOA will be prohibited from using a collection agency or an attorney to collect past due assessments.  There are 7 specific requirements to be included in the policy:

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Civil Unions & Estate Planning


Spouses, Partners, Children & Uncertainty

Submitted by Eve I. Canfield

The Colorado Civil Union Act’s Legislative Declaration states that its purpose is to provide eligible couples (typically same-sex couples) the opportunity to obtain the same benefits, protections and responsibilities that Colorado law  provides to spouses of a legal marriage. It seems a simple enough idea – just replace “spouse” with “partner in a civil union”, right? If it isn’t marriage, do parties get “unionized” or “civilized”? The Civil Union Act will certainly provide advantages under Colorado’s probate laws, but there are over a thousand federal laws that will continue to affect estate planning and other aspects of the lives of same-sex couples. For instance, Social Security Survivor Benefits are based on federal law and are not yet available to any kind of same-sex couples. There are 38 states, including Colorado, that prohibit same-sex marriage, but 20 states that recognize some form of legal relationship. If you were legally married in California, because California recognizes same-sex marriage, you are automatically deemed to be in a civil union in Colorado. What rights as a surviving spouse in California might you lose by this deemed change in your status in Colorado? Are your children legally your children in Colorado, if they are not your biological children? How should your estate plan be modified once you enter into a civil union? It will be some time before all the questions regarding civil unions are resolved, in the mean time it is important to review your situation to take advantage of the new rights and privileges, and also to try to protect those you love against unexpected consequences.

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