09 May 2013

Criminal and Family Law Bills Passed in the Colorado General Assembly In 2013

The legislative session of Colorado's state legislature ended yesterday. 

This post summarizes bills that passed both houses of the state legislature and are expected to be signed by the Governor, but some of these could be vetoed or pocket vetoed.  Since both house of the state legislature are controlled by Democrats, the Governor is a Democrat, and bills that have been opposed by the Governor have mostly been killed before passage, vetoes of these bills are unlikely, but not impossible.

A law implementing a marijuana legalization initiative (Amendment 64) that decriminalizes for state law purposes, a law establishes driving while stoned limits, laws imposing a variety of modest gun controls (universal background checks, limiting access to large capacity magazinesdivesting control of firearms already owned from people not allowed to buy new ones, limiting availability of online concealed weapon permit classes), and of course, the Civil Unions bill, have captured the headlines. 

But, there were other big reforms passed this session as well in the areas of criminal law and family law that are quite notable.

A variety of measures allow for more lenient sentencing for non-violent criminals and would reduce the number of people in Colorado who are incarcerated before and after convictions.  The wrongfully convicted were given a right to compensation.  In the family law area, an alimony formula (the legal term is "maintenance" in Colorado) dramatically reforms the nature of the core substantive entitlement to maintenance in almost every divorce case.

 (This post does not constitute individualized legal advice. Read the linked legislation and confirm that it became law and consult legal consult rather than relying on this post alone before relying on statement made here.  I do practice family law but my practice does not include criminal law.)

Criminal Sentencing and Pre-Trial Incarceration Reforms

* SB 13-250 overhauled the sentencing laws for drug offenses.  In general, the law equalized sentences for all non-marijuana drug offenses (rather than punishing offenses involving some kinds of drugs more heavily than others), and dramatically reduced sentence lengths for low level offenses with a strong preference for treatment for mere drug users. 

* HB 13-1160 increases dollar thresholds for theft offenses and consolidating select stand alone theft offenses.  In effect, this means more leniency in marginal larceny cases (as opposed to burglaries and robberies).

* SB 13-229 downgrades the offense of a juvenile walking away from a community corrections type arrangement from a serious felony to a minor misdemeanor, narrows the definition of the most aggravated subtype of burglary offense, and addresses a variety of technical criminal justice system issues (e.g. who has to sign an indictment).

* HB 13-1242 allows people who have made technical bail bond condition violations to receive probation (the law remains the same for those who commit crimes while on bond or fail to appear at court).

* HB 13-1156 makes diversion programs more widely available for adults charged with crimes.

* HB 13-1236 requires pre-trial services to screen people awaiting trial in order to minimize pre-trial incarceration in the bail process, which is likely to greatly reduce the number of people who are not released while awaiting trial simply because they are poor.

* HB 13-1254 adds new ways for cases to be referred to restorative justice programs.

* HB 13-1060 increases maximum fines in municipal courts.  In practice, this is likely to shift a significant number of minor offenses tried in the state court system where a full misdemeanor sentencing regime applies to local government revenue driven municipal courts where fines and/or very short sentences of incarceration are the norm and the collateral consequences of a conviction are much more modest.

Other Criminal Justice Reforms

* HB 13-1210 clarifies that the right to a public defender extends to initial plea negotiations as a court recent held as a matter of constitutional law (Colorado previously had a law specifically denying defendants this right in certain cases).

* HB 13-1230 compensates people who were wrongfully convicted of crimes who are later exonerated without regard to fault.

* HB 13-1109 clarifies that automatic restraining orders in favor of crime victims remain in effect against convicted felons while the felon is on parole.

* SB 13-123 eliminate the collateral consequences of crimes that the Governor pardons and expands the ability of convicts to seal criminal records (which also impacts the collateral consequences of a crime).

* HB 13-1166 effective August 7, 2013 removes the crime of adultery (which has been anomalously "prohibited" without any penalty or offense classification every since no fault divorce was adopted in the state) from the books, and removes the crime of  "promoting sexual immorality" from the books in Colorado.  The prior crime had made it a crime to "for pecuniary gain, furnishes or makes available to another person any facility, knowing that the same is to be used for or in aid of sexual intercourse between persons who are not husband and wife, or for or in aid of deviate sexual intercourse, or who advertises in any manner that he furnishes or is willing to furnish or make available any such facility for such purposes[.]"

* SB 13-227 terminated the parental rights of rapists when this causes a child to be conceived.

* HB 13-1163 provides for public funding for rape kits out of law enforcement budgets, even if the victim receives one from a private medical provider and does not press charges at the time.

* HB 13-1022 allows the Court Clerk to summarily dismiss driving without proof of insurance charges upon presentation of proof of insurance on the date charged without the involvement of the DA or a judge.

* HB 13-1077 allows someone in a driver's revocation hearing to challenge the legality of the traffic stop giving rise to the revocation hearing (e.g. for lack of probable cause/"driving while black" cases).

Family Law Reforms

* HB 13-1058 establishes presumptive alimony award amounts and durations based on the length of the marriage and relative incomes of the parties which must be considered by the judge but can be deviated from in the discretion of the judge for any of the reasons existing under current law effective January 1, 2014, and adds guidance to judges seeking to modify alimony awards when the obligated former spouse retires.  Under prior law, permanent alimony awards were governed by a multi-factor test that amounted to an instruction to the judge to "do the right thing."  In essence, post-decree maintenance awards are presumed not to be permitted in marriages of less than three years.  The presumptive duration of the award starts at a little less than a year in three year marriages, reaches 50% of the length of the marriage after twelve and a half years of marriage, and is ten years in marriages of twenty or more years.  The presumptive amount is 40% of the income of the higher income spouse less 50% of the lower income spouse.  The guidelines are not binding and various circumstances that justify deviating from them are set forth in the statute.  The minimum criteria for eligibility for maintenance are basically unchanged.

This is the biggest substantive change in Colorado divorce law since the enactment of the child support guidelines in the 1980s.  It is likely to dramatically reduce the uncertainty regarding alimony awards in divorce cases in Colorado.

* HB 13-1204 updates Colorado law regarding marital agreements (i.e. prenups and postnups) signed on or after July 1, 2014.  Mostly, this formalizes and clarifies that these are only valid if there is adequate financial disclosure as defined in the statute and the spouse has access to a lawyer as defined in the statute.

* HB 13-1200 tweaks custody modification laws for cases involving deployed armed service people.


Anonymous said...

I don't understand why they would only change the alimony laws from January 2014 and on. What about the people that are stuck paying alimony when their ex is cohabitating with someone and doesn't get married because they will lose the alimony. That doesn't seem fair. So, they have their new partner helping support them and their ex contributing to the household? Someone needs to change that, if you choose to cohabitat you should lose the alimony. The change in stopping alimony due to cohabitation of the ex should be for EVERYONE, not just the divorces after 2014. Massachusetts did it. That's the way it should be.

andrew said...

They effective date is postponed because of the belief that people filing for divorce thinking the law is one thing shouldn't have the law changed on them when they do file, and that it takes time for the major policy change involved in new law to disseminate to the general public. People who were planning to divorce based on the old law are given a reasonable time to do so. Also, the delay in the effective date of the law isn't that great. Normally, it would have taken effect on July 1, 2013 if it had a "safety clause" or August 7, 2013 if it didn't (which would afford voters a change to petition to have the law not take effect and decide at the next election - something that didn't happen, but could have in the case of a charged social issue like alimony laws). The delay is a mere six months.

Re cohabitation and maintenance - keep in mind that parties who execute a separation agreement, rather than having the courts impose maintenance, can bargain for a different rule. A rule ignoring cohabitation greatly reduces litigation over the issue since cohabitation is far less well defined than marriage, and also removes an incentive to be focused on the romantic life of your ex-spouse which is also healthy. Indeed, in general, fixing a judicial remedy in a way that isn't contingent about later events if often healthy because of the incentives it creates - maybe simply eliminating the law that ends alimony when someone remarries would be a better solution that would avoid the anti-marriage implications of the current rule.

Also, since cohabitation doesn't create a legal obligation to an ex-spouse, permanent removal of alimony as a result of a transient relationship with no strings attached isn't fair either.

Cohabitation does circumvent the concept behind ending alimony upon remarriage, but if that concept wasn't such as solid one to start with, maybe an artificial solution to an artificial problem isn't such a bad thing.