NEW 2012 DEADLINES/TIME FRAMES IN COLORADO DIVORCE AND CUSTODY CASES

January 6, 2012

As with the coming of any new year, 2012 stands to bring change to Colorado, and the world as a whole. This, of course, incudes the world of family law. Commencing January 1, 2012, Denver divorce and custody attorneys are faced with changes to the Colorado Rules of Civil Procedure regarding deadlines and time frames. Though none are earth shattering and many are variations of old rules, they can certainly have an impact on a case if not followed. These changes affect the time frames for responding to motions, issuing discovery, declaring witnesses, and general time frames regarding filing and case management.

Perhaps the most significant change relates to the interplay of C.R.C.P. Rules 5 and 6, as relates to the filing of pleadings and deadlines. C.R.C.P. Rule 6 used to provide for an additional 3 days for a person to file certain documents with the court, such as a response to a motion. This 3 days depended upon how the original document being responded to was served. For example, though C.R.C.P. Rule 121 (1-15) indicated that a response to a motion was due within 15 days of transmission of that motion, Denver area divorce attorneys knew that so long as the motion was mailed, e-filed, or essentially sent via means other than actual service or hand delivery, there would be an extra 3 days for the response to be filed, or 18 days in the aggregate. As of January 2012, we attorneys, and parties not represented by an attorney, no longer have those 3 extra days. C.R.C.P. Rule 5 still makes allowances for filings on a Monday or the day after a court holiday which might otherwise have been due on the weekend or on that holiday.

Fortunately, though we have lost the extra 3 days added to the time frame for submitting various filings, such as responses, the state has seen fit, pursuant to revised C.R.C.P. Rule 121 (1-15), to extend the time for filing a response to a motion, from 15 days to 21 days. Thus, in some instances, we have lost the 3 days, but have gained more time to take action. Sadly, the time to file a reply to a motion (essentially responding to a response for those non-attorneys) will still remain 7 days. Until a few years ago, that 7 days was 10. Fortunately, the powers-that-be did not lessen that time frame further. I presume most divorce and custody attorneys will be thankful for the extra time to file responoses to motions, as complexities can create the need for more time to respond in some instances.

Other lesser changes handed down will have some bearing on domestic relations cases. In new divorce or custody cases, the intial status conference must be held within 42 days of the case being filed, instead of the prior 40 days. With contempt of court actions, C.R.C.P. Rule 107 now indicates that the contempt motion and citation must be served 21 days prior to the first hearing, generally the advisement, as opposed to the previous 20 days.

Prior to final hearings, whether related to pre-decree divorce or custody issues, or significant post-decree actions, such as child support or parenting time modifications, attorneys have been required to file what is called a "joint trial managment certificate," which sets forth the issues before the court, party positions, witnesses, exhibits, etc. 10 days prior to the hearing. That time frame, as per C.R.C.P. Rule 16.2, has now been shortened to 7 days. Likewise, the time frame for exchanging exhibits has also been shortened to 7 days, down from 10 as well. These changes give attorneys more time to prepare during those final days before hearing, including gathering any additional documents/exhibits. Many judges are "cool" about the JTMC deadline and will often not hold attorneys to the strict 10 days for filing. Additionally, when two attorneys can work together (such as with one of my hearings set for next week), they will often agree that exhibits can be exchanged in less than 10, or now 7 days. In those instances in which the court or opposing counsel holds steadfastly to the strict deadlines set forth in the rules, attorneys can take comfort in knowing there are now 3 extra days to accomplish these tasks.

Finally, and as important as the changes to time frames for responding, there are changes set forth in C.R.C.P. Rules 16.2, 33, and 34 related to the filing of witness disclosure lists and the issuing of discovery (interrogatories and requests for production of documents). Though the attorneys at Plog & Stein do not believe discovery is always needed, in some custody or divorce cases it is. The general rule of thumb we attorneys have adhered to over the years is that witnesses, whether expert or lay, must be disclosed 60 days prior to hearing. It is common for witness disclosures to be provided right around that 60 days, as it would be wasteful to file numerous disclosures as witnesses become known. The new deadline is now 63 days. From an attorney perspective, this is not that significant a change, but one that should be known by all. Failure to properly disclose a witness for hearing can result in preclusion of perhaps crucial testimony. Everyone needs to go back and review his or her calendar to change any notations regarding witness disclosure deadlines for any 2012 hearings already set.

Related to discovery, the old, pre-2012 rule of thumb, was that if interrogatories or production requests needed to be issued for purposes of gathering additional information beyond that provided by normal disclosures, said discovery must have been issued 60 days prior to hearing. Though there was, from time to time, debate as to whether an additional 3 days was required, thereby making it 63, the general rule of thumb was 60 days. Parties were provided 30 days, pursuant to C.R.C.P. Rules 33 and 34, to file or provide their discovery responses. Those time frames have now been extended to 35 days. Though C.R.C.P. 16.2 did not specifically indicate, "discovery must be served at least 60 days prior to hearing..." it did indicate discovery must be served so as to be completed 30 days prior to hearing. Rule 16.2 has now changed to indicate it must be served so as to be completed 28 days prior to hearing. With the 35 days allowed for responding now provided, coupled with the removal of the 3 extra days pursuant to the now defuct Rule 6 references to such, the new concrete rule, derived from the mixture of rules, is that discovery must be served 63 days prior to hearing. Attorneys, and those parties not represented, should be aware of these changes as well. Discovery served late opens the door for objections by the answering party and potential court rulings that it need not be responded to.

As with any other discipline, or aspect of the law, there is a need for rules. Rules change from time to time. When dealing with divorce, custody, and child support cases, Colorado attorneys should be aware of these new changes. Though I believe some of these changes were needed, some were not, some make sense, and some don't, they are what they are, and need to be followed. It has been quite some time since I have seen such an expansive change in the rules regarding time frames. Hopefully it will be quite some time before more sweeping changes occur. There is enough uncertainty, despite rules, statutes, and case law, when it comes to wading through all that goes into a family law battle, whether over visitation or child support. Consistency can be a blessing for attorneys and parties alike.