By: Sarah T. McCain
With years of experience and countless Colorado divorce and custody cases under my belt, I have heard almost every allegation imaginable that an experienced Colorado divorce attorney might hear. Often times, those allegations entail one party to a divorce alleging that the other has said this, that, or the other thing. As they say in the movies or on TV, “anything you say can and will be used against you in a court of law.” Some parties are aware of this adage and understand what they say to their soon-to-be former significant other can be used as evidence. Other’s do not and will say the most outlandish, hurtful, or damaging things, oblivious of the fact that their words can be used against them, whether related to financial issues or custody. This holds true for verbal and written communications, such as emails or text messages.
Thought the concept of your words being used against you may be known to some, I generally make sure to inform each new client I meet with of this concept and to arm them with knowledge regarding how to conduct themselves and what to say or not say to their spouse, or the opposing party in a custody case. Words matter. The legal concept behind this issue ties into the fact that under the Colorado Rules of Evidence regarding hearsay, which do apply to family law cases, the statements of a “party opponent” can be used against them in court.
The balancing act exists in that communication is a must, even in a devolving relationship. So answering my title question, YES, it is absolutely appropriate to continue to speak with your spouse with a few exceptions and limitations.
It is always encouraged to continue communications so long as those communications remain amicable. These can take place through in person conversations, emails, and text messages. Parties are often able to resolve a majority of issues through communications between the two of them. Conversations in writing can generally be used as exhibit purposes if need be. One example of when written versions of good conversation may be useful would be when one party is claiming to the Court that communications are so poor that joint legal custody (decision-making) is not possible. When going to court, a party to a divorce might rely on those good communications to show the court that communicating and working together is possible. Frankly, examples of good communication can potentially ease the court into arriving at the conclusion that a part is a good guy or good gal. As in the real world, impressions matter. I often advise clients to be sure to leave positive paper trails (including electronic) whenever possible.
While positive communications are important and can help facilitate resolution and moving on, it is important to remember some rules. Though amicability may rule the day at any time, in any divorce, I often advise parties to not share their every thought with the other side. Likewise, when discussing settlement among themselves, I always advice my clients to make sure they indicate, particularly when speaking through email or texts, that the discussion is “settlement” related. Also pursuant to the Colorado Rules of Evidence, particularly Rule 408, settlement discussions are not admissible in court, meaning the judge may not hear the content of such. By using the magical words, settlement discussions, parties are able to communicate ideas, positions, and thresholds without fear of their words being used against them down the road. In essence, good communication between spouses divorcing in Colorado can be good. On the other hand, bad communication can be bad.
In Part 2 of this post, I will look into the subject of negative communication scenarios and how those things can affect the outcome of a Denver divorce or custody case. This will include reference to a prior blog post from some years back.
To learn more about the Colorado court process regarding divorce and custody contact the experienced Denver family law attorneys at Plog & Stein, P.C.