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Diana L. Powell

Diana Powell’s Answers

3 total

  • Can my mother-in-law charge me for rent? Does she have the right to start charging me for past & future months?

    I live in Colorado. My wife and I are currently having marital problems. We live with my mother-in-law, we don't pay rent, just help out with some of the groceries & utilities. There was NO verbal agreement or paperwork signed. Just recently, she ...

    Diana’s Answer

    Your wife’s mother is your landlord and you are her holdover tenant. She can evict you, but she has little chance to enforce claims for past rent, without either (1) proof that there was a written rental agreement or (2) proof you previously paid rent and expenses to document a verbal agreement. On the other hand, she still gets to evict you. Resisting eviction is expensive, and offers only a short delay for the inevitable.
    If things don't settle down, it is time to leave your mother-in-law's home. If your wife does not also move out, your marriage may be over. While a divorce involving no children and few assets can be done without an attorney, your use of an attorney will avoid serious pitfalls. If you do have children or assets, you do need an attorney, even before you move out. With both children and assets, your departure from the home without temporary resolutions can prejudice the situation against you.

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  • "ve been divorced since 1995 he's since retired in the military,ive been recieving partcial retirement can he stop it

    my lawyer siad this was part of our agreement,ive stood by my agreement ,now he's filed a motion to stop the retirement completely becuase i have been living with some one else can he do this

    Diana’s Answer

    If you receive your miitary retirement pay directly from DFAS on a Military Pension Division Order, under the Former Spouse Protection Act, the payments will end only on the first to occur of the death of the former service member or you. (Payment directly from DFAS depends on having been married to the service member for 10 years during at least 10 years of creditable service.) (Whether there are survivor benefits after his death payable to you depends on whether they were provided for either at the time of your divorce or subsequently. Generally, Survivor Benefit Pay will cease upon your remarriage, and a common law marriage based on cohabitation and "holding out" yourself as married will terminate survivor benefits.)
    If you receive your share of the military retirement pay from your former husband, rather than from DFAS, it will be important to look at the court orders to determine whether the portion of military retirement pay that you receive is part of the property division or in the nature of maintenance/alimony. If you are unable to establish that you receive your portion of the military retirement pay as part of the property settlement, it may be modifiable. Your lawyer should be able to help with this.

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  • What type of things look good to the judge when fighting for custody for your child?

    My boyfriend is trying to fight for his son. Me and him live together in an apartment with another couple in a nice area. we have a little bed for him since he's almost two years old places for his toy everyone loves him here. But my boyfriend is ...

    Diana’s Answer

    When you mention that your boyfriend is trying to fight for his son, and you talk about custody, it is important to mention that in Colorado we refer to these issues as allocation of parental responsibilities and determination of parenting time. A parent may have joint decision-making with the other parent, with very little parenting time, or a parent may have equal parenting time and the other parent may have sole decision-making, either for all major decisions or in a particular category, such as medical or educational decisions. Colorado courts follow the guidance of our legislature that it is generally in the best interest of the children to have frequent and continuing contact with both parents.

    In determining the allocation of PARENTING TIME for a particular child, the courts will look at the following criteria, which are set out in the state (C.R.S. 14-10-124):

    (1) Wishes of each parent regarding parenting time;

    (2) Wishes of the child, if he is mature enough to express sound, reasoned and independent preferences (this child is too young---but will be older one day);

    (3) Interraction and relationship with the child and his parents, siblings and any other person who may signficantly affect the child's best interests (here the court will look at you, the grandmother, etc.);

    (4) Child's adjustment to home, school/daycare and community;

    (5) Mental and physical health of everyone involved (but disability alone is not a basis for denial of parenting time);

    (6) Ability of each parent to foster love and affection between the child and the OTHER parent (careful, here!);

    (7) Whether the past history of involvement with the child reflects a system of values, time commitment and mutual support;

    (8) How close the parties reside to one another;

    (9) Whether one of the parties has been a perpetrator of child abuse or neglect (credible evidence required);

    (10) Whether one of the parties has been a perpetrator of spouse/partner abuse (credible evidence required); and

    (11) most importantly, the ability of each party to place the needs of the child ahead of his or her own needs.

    In allocating DECISION-MAKING responsibilities, the relevant factors are:

    (1) Credible evidence of the abilities of a party to make joint decisions;

    (2) The past pattern of involvement (see item 7 above);

    (3) Whether involvement of both parties in decisions will promote contact between the child and both parents;

    (4) Child abuse (see item 9 above);

    (5) Spouse abuse (see item 10 above);

    One of your more important questions was a concern about whether the court might hold it against your boyfriend that the two of you are cohabiting. The court will be very interested to hear whether the cohabitation has a positive or negative impact on the child. Generally, the court will be guided by the statute's direction that "the Court shall not consider conduct of a party that does not affect that party's relationship to the child." In this regard, the Court will be much more interested in indications that you and the child's father are offering a caring environment in which the child's needs are consistently met. Her mother's support for your position is also good, but realize that often when it comes to testimony in court, a mother may find it difficult to testify against her own child. So, other witnesses will be required, if you go to court.

    Knowing that a court will almost certainly allocate some parenting time to each parent, rather than all or nothing at all, your boyfriend may be able to negotiate an agreement regarding parenting time with his son's mother. If that is done, your boyfriend will need to make sure a written parenting plan is filed with the court. An attorney or a mediator can help with a written parenting plan. A written proposed plan must be submitted to the court by each party, if there is a trial.

    I hope this has been helpful.

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