Denver Bronco Logo
Support the Denver Broncos

The Law Frog on KILO 94.3 – March 16, 2022

On the third Wednesday of every month, David McDivitt joins KILO 94.3 to answer legal questions from callers in Southern Colorado. Being a part of the morning show on KILO 94.3 is a dream come true for David, who had always aspired to be a rock star. David’s talents lead to him practicing law over practicing sick guitar rifts, but this lets him help people in need AND rock out with other music fans. Tune in from 8am-9am to hear some of the fascinating legal situations David addresses. If you have any questions of your own be sure to call in: 719-633-KILO or submit a question here.

March 16th, 2022

Legal Issues Covered This Week

Caller: Tom and his wife are divorcing after years of marriage. The couple share a ten year old child that is a result of his wife’s affair. Tom is listed as on the birth certificate, does he have legal rights to custody?

David: Tom’s name is on the birth certificate. Tom signed the birth certificate, so this acknowledges legal paternity. It is Tom’s child from a custody perspective, the same way an adoptive parent has legal protection and custody rights to their child. If the biological father comes back into picture to challenge Tom for a paternity battle, things could be complicated. However, the court is concerned with legal paternity and will almost always refer to the birth certificate.

Takeaway: Custody rights in court will default to legal paternity, not biological paternity. If the situation was reversed and Tom was the biological father, but his name was omitted from the birth certificate, it would prove even harder to win custody.

Caller: Josh was hit by a drunk driver and was hospitalized for a month, incurring medical costs and forfeited wages. He attempted to file a restitution order with the district attorney’s office. Unfortunately, the DA is claiming they never received any documentation from Josh, only a phone number without any explanation.

David: These cases are often fraught with challenges. Sometimes you get your money, sometimes you don’t. Often times the defendant may not have the funds in these situations. However, you can ask for all sorts of damages. Ideally, you want to ask the court for restitution, and the DA will prosecute the drunk driver. A court order will be attached to the defendant that establishes they are now obligated to pay the victim x amount of money. The defendant is required to put that money into the registry of the court and then it will be dispersed to the victim. In Josh’s case, he does still have options. Go the to DA’s office and speak with one of the deputies. The DA decides what cases will be prosecuted in a given county, so they may be able to reopen the case.

Takeaway: I always tell people if you have been involved in a car crash to contact a lawyer right away. They will help you navigate the legal process and steer you in the right direction. A seasoned attorney will know what legal avenues are viable, and which are not. Make sure you get proof, such as a signature, that the DA received documents for the restitution process. Also, it is important to go to sentencing. These are all steps an experienced legal professional will handle and counsel you through.

Caller: K is divorcing her husband after one year of marriage. Two months prior to tying the knot, her husband purchased a house. The house is in his name and he pays the mortgage. Kay pays the water and gas bills, as well as procured the realtor. Due to the impending divorce, her husband has listed the house on the market. What, if anything, is K entitled to??

David: One of the first questions in a divorce is who owns the home, how is the home going to be divided? It is an issue of marital property vs separate property. There are several factors the court takes into consideration when making a preliminary decision if a home is marital or separate property. A lot of factors in this case point to this house being separate property. He bought the house in his name, and pays the mortgage in his name. Finding the realtor and paying gas may not be enough, and only being married a year is another consideration. Her best option would be to argue if the value has appreciated over this time, and that she contributed to this appreciation in value. In this case, she could request an injunction to remove the home’s listing on the market.

Takeaway: It is very difficult to establish marital property if her name is not on the title. Given the short period of time, the couple does not have complicated or entangled assets. The best option in this case would be to consult a family law attorney. Even meeting for a few hours would be a great investment. A good family law lawyer will be able to determine if this is worth pursuing in court.

More McDivitt Frog News