While undertaking a new divorce case today with interstate ramifications, I got to thinking about the fact that people, including attorneys, often have questions or problems with the issue of where a divorce or custody case will be heard. By this, I mean that, at times, there is confusion as to which is the proper county for a case to be filed in. I am not confused and hope to enlighten those on the subject who are. There are various rules set forth in Colorado Rules of Civil Procedure, or statute, regarding where a case shall be heard, including, again, the specific county.
When undertaking the filing of a new divorce or custody case, one of the first questions asked by the Denver divorce attorneys at Plog & Stein, P.C., is "what county does the other party reside in?" We ask this question for purposes of ensuring compliance with Colorado Rules of Civil Procedure Rule 98, which deals with the issue of "venue." Pursuant to Rule 98(c), "..., an action shall be tried in the county in which the defendants, or any of them, may reside at the commencement of the action, or the county where the plaintiff resides when service is made on the defendant in such county;..."
The language set forth in C.R.C.P. Rule 98 is plain and simple, and should be easy to follow. If husband and wife reside together in Arapahoe County at the time a divorce is filed, the divorce shall properly be filed in Arapahoe County. If the parties originally resided in Arapahoe County and have separated, with wife now residing in Denver County, the case should properly be filed by husband in Denver, unless wife can be served in Arapahoe. Sometimes this can be accomplished. Some times it cannot. The common presumption that the parties resided together in a specific county automatically makes that county the proper place for filing the divorce is wrong.
Rule 98 is applicable in Denver area custody cases as well. People often wrongly assume that venue is proper in the county in which the child is located. Again, this is a false assumption. Though it certainly might be more convenient to have a Denver area custody case heard in your specific county, you must look to where the other parent resides. Admittedly, when there are childrern, there is a greater chance for the person in one county being able to serve the other parent in that county when visitation exchanges will occur there. At the same time, one has to weigh the potential damage to the children of seeing the other parent served, or their angry reaction to such.
An exception to the general rule flows from the statutory section set forth in C.R.S. Title 19, Article 4, regarding paternity cases. In addition to the establishment of parentage, paternity cases will generally entail issues regarding custody and child support. Pursuant to C.R.S. 19-4-109, a paternity case may be brought in either the county in which the prosepctive father resides, or in the county in which the child at issue resides. Thus, there are exceptions in some cases which family law attorneys in Denver should be aware of.
One might ask, "Why does the issue of venue matter?" I will answer that question. Venue can matter for various reasons. One reason relates to timing and delay. If a party files a case in the wrong venue, he or she can expect an experienced divorce or custody lawyer in Denver to challenge venue. This will be done with a motion to change venue, or in the response to the underlying petition. With that challenge comes delay. It could conceivably take a court a month or two to rule on the issue of venue before it will get to the substantive issues in the case. If a party is in dire need of child support or orders regarding visitation, that month or two of delay can mean all the difference in the world.
Another issue that arises regarding venue can be logistics and cost. Let's say a divorce case is filed in El Paso County (Colorado Springs) by the wife and the husband resides in Adams County. If husband is forced to travel to El Paso County for multiple court hearings, and to pay an attorney for such, he could be looking at many hours of driving and hundreds of dollars in attorney fees based on the extra distance of 60 to 70 miles of travel. With today's gas prices factored in, venue can become a real concern based on these circumstances.
If you are pondering the filing of a divorce or custody case in Colorado, make sure you do it in the proper county. When speaking with an attorney, make sure he or she is well versed in the rules regarding venue. I have seen attorneys file cases under the silliest and most erroneous of circumstances, such as an attorney filing a case in Denver because one party worked there and it is a faster court. Neither of the parties even resided in Denver and venue was clearly wrong. Again, these types of mistakes can lead to the loss of both time and money.
When served with divorce or custody papers in the wrong venue, the first step the attorneys at Plog & Stein take is to assess the pros and cons of challenging venue or just letting the case remain where it is. The cost factors must be looked at. Timing factors must be looked at. Perhaps the most important factor is trying to assess which is the best court for your case to be heard in. Each county and each judge is different. Some counties are more favorable to mothers or fathers on various issues, such as child support or visitation. This is not to say that a gener bias exists, but subjective viewpoints of the court can come into play. A seasoned Denver area family law attorney will know how judges will more or less rule on specific issues. At times, it becomes strategically advantageous to just let the issue of venue go.
Finally, remember that a challenge to venue must be raised prior to the deadline for filing your response, which is 21 days. Such can be done either in the response or with a separate motion.
Now that you know the rules regarding venue, go out and file. Just do it in the right place.