Strategically helping Colorado clients through divorce & custody cases

Articles Posted in General Family Law Knowledge

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gavel-2-1236453-300x200By: Johanna E. Blumenthal

If you have ever called a law office seeking legal services in a pending case, you were probably asked whether anything was set with the court and, if so, what was set. This information is crucial because what one can expect and what one needs to do in order to be prepared for a setting with the court depends upon what type of setting it is.  In family law court, there are generally five major types of settings. Each is explained below.

Status Conferences

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magnifying-glass-1415592By: Johanna E. Blumenthal

An expert is somebody who is uniquely qualified by his/her education, knowledge and experience to offer opinions regarding matters that are scientific, technical or that require specialized knowledge. See C.R.E. Rule 702. Although any witness could potentially by certified as an expert by the court if he/she possess the requisite education, knowledge and experience, not every witness can offer expert opinions to the court. 

In some family law cases, hiring an expert is crucial to the success of your case. This is particularly true when your case turns on a fact that requires an expert opinion (an opinion that is based upon specialized knowledge). For example, if your case is based upon a showing that your child’s emotional development is being substantially impaired, you will likely need a developmental psychologist to offer an expert opinion regarding this and why this is the case.  

Even if your case does not strictly need an expert, many cases benefit from the use of experts as expert opinions can be useful to: 1) facilitate settlement (when the impasse between the parties is being caused by a dispute that an expert opinion can resolve); 2) offer recommendations and solutions (when the parties are truly unsure what is correct or best under the circumstances); 3) facilitate the admission of evidence in the court proceeding (when you need to get into evidence hearsay statements of a minor, a minor’s therapist or even just consolidate a lot of information into a more digestible format) and/or 3) bolster one party’s position.  While the use of experts flows from C.R.E. Rule 702, in most family law cases, C.R.C.P. Rule 16.2 is going to govern timing in terms of disclosing experts for court. Continue reading

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By: Johanna E. Blumenthal

Many people are reluctant, nervous, or even fearful of going to court. This is understandable because most people have never been to court and find the formal setting uncomfortable. Additionally going to court can be inconvenient to people who live far away from the courthouse (sometimes even out of state) or for people who have to take time off of work during the court’s business hours. Given the inconvenience of going to court, people often ask if they can just “file the papers.” In essence, what they want to know is whether it is possible to get divorced without going to court. 

In Colorado, you CAN get a divorce decree without ever stepping foot inside the courthouse.   If this is your goal, the most reliable way to ensure that you avoid ever going to court (and, in some cases, the only way) is for you and your spouse to consult with and work with attorneys.  Even if all necessary documents are filed and full agreement has been reached, the parties will still need to attend a quick, final hearing unless they have submitted what is a called an “affidavit for decree without appearance of parties.”   This document basically lets the court know that everything has been filed and asks the court to enter the divorce decree without anyone having to physically appear.  This Affidavit can only be used as a means to avoid court altogether if there are no minor children of the marriage or, if there are kids, both parties have attorneys representing them in the divorce.       Continue reading

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courtroom-1-1236725-300x201By: Sarah T. McCain

When you start a family case, the first document that you will receive from the court is called the Case Management Order. This order often includes a Notice of Initial Status Conference. After working in this field for many years, I continue to be surprised by the number of individuals who simply receive these documents and set them aside, without even bothering to read them. Both documents provide important information that could be vital to ensuring that your case gets off on the right foot.  Failing to review and follow the CMO can potentially lead to negative results in your case.

First, the NOISC that you receive either provides a date in which you will meet with the court for the very first time or it provides the information on how to go about scheduling this very first meeting. This Initial Status Conference is required as part of the case, pursuant to statute, and it can only be vacated under very specific circumstances, such as when when the correct document (a Stipulated Case Management Plan) is filed to let the court know that this conference is not necessary. However, in most cases you will need to attend this conference.  Continue reading

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meeting-room-1499653-300x226By Michelle L. Searcy

Whether you are involved in a divorce (dissolution of marriage), child custody (allocation of parental rights), or modification family law case, you will be encouraged, if not ordered to participate in mediation.  In mediation, the mediator will work with you to try to resolve issues through agreement.  This confidential process gives you and the other party an opportunity to control the outcome of the case by reaching an agreement instead of having a stranger decide for you.  You may not resolve all of the issues.  Even if you are only able to reach agreements on some issues, it will help you pare down your court hearing time to focus on the issues that truly cannot be settled.

As a family law attorney, I have represented many clients through the mediation process.  Mediation does not always result in a successful outcome.  Often, I have heard clients express the opinion that mediation wasted time and money.  This article will help you avoid that feeling by focusing on ways to get the maximum benefit from mediation.  That said, mediation can frustrate the parties because the mediator lacks the authority to make either party agree to anything, or make decisions.  Some mediators apply pressure to the parties with the hopes of encouraging compromise.  It helps to keep in mind that the mediator’s judgment does not necessarily reflect the analysis the court may make when assessing a case. Continue reading

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documents-1427202-300x226By: Stephen J. Plog

Having spoken with thousands of people over the years regarding their Colorado divorce and child custody cases, one common topic of discussion is that of evidence, within the context of what can or cannot be used in court.  There are many common misbeliefs about what is good evidence, meaning something the court can accept and use for purposes of formulating its ruling.   For example, sometimes people ask whether it would help for them to have friends or other third persons write letters, whether attesting to an event they’ve witnessed or perhaps as to someone’s “character.”   Each time this is asked, I am compelled to let people know that letters from third persons are not going to be helpful (generally) and are going to be considered inadmissible hearsay.  The second part of my response is always going to be that we will need the potential letter writer to attend court to testify.  The Colorado Rules of Evidence dictate what is or is not going to be admissible evidence in a divorce or child custody case.    In this blog post, I will attempt to give a basic tutorial regarding what will or won’t be admitted. Continue reading

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pensando-1499844-300x200By: Stephen J. Plog

Having practiced family law in Colorado for over 20 years, I’ve seen many situations in which one party or the other in a divorce case has, or both have, changed their mind about an aspect of the divorce case, including whether to proceed with the case at all.   In a divorce case, until something is put into writing and signed off on by the presiding judge as an order of the court, there are opportunities to have a change in tune, or of heart, in terms of how to proceed.   However, it should be noted that the consequences of changing one’s mind differ depending on the decision sought to be undone.  To phrase it differently, while opportunity exists to entertain various changes in mind along the path of your divorce, there are some decisions you may not be able to undo, such as changing your mind regarding the property settlement aspects of a properly executed and adopted separation agreement.

One of the more common changes in mind a person going through a divorce might have ties into actually following through with the case.   Over the years, I have seen more instances than I can remember in which one spouse decides they are ready to file.   The divorce case gets filed and then that person changes their mind.   Sometimes this happens prior to the other party being served with the divorce petition and summons.  In those instances, the case can simply be voluntarily withdrawn or dismissed, pursuant to Colorado Rules of Civil Procedure, Rule 41, without even needing to notify the other party.   If the other party is served, that’s a different story.  In those instances, for the divorce case to be dismissed, both parties must agree that the case should be dismissed and must file a stipulation with the court reflecting such a conclusion.  If the second, served spouse wishes to proceed, the case will continue despite the first party changing his or her mind.   I have seen many cases mutually dismissed, with the parties wishing to attempt reconciliation and perhaps realizing that they jumped the proverbial gun on proceeding down the divorce path.    Continue reading

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During a divorce proceeding, or in a post-decree modification proceeding, issues related to a spouse’s income or assets are often disputed, especially when one spouse suspects the other spouse is hiding income or assets from them.

Typically, bank records and income information is disclosed through the mandatory financial disclosure process of Colorado Rule of Civil Procedure 16.2, or (if you have need to review many months worth of financial documents) through the process of discovery as outlined in Colorado Rules of Civil Procedure 33 and 34. These rules of civil procedure, however, operate on the premise that the spouse will abide by their duty to disclose requested or required information. Some spouses, whether through dishonesty, indifference, or neglect, do not abide by their duty to disclose (or fully disclose) their information as required under these rules.  

The spouse who does not disclose information as required is vulnerable to significant sanctions, and these sanctions often are sufficient to protect the spouse seeking this information.  However, if production of documents remains necessary, a party’s right to subpoena documents exists under a different, C.R.C.P. Rule 45. Continue reading

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There are two types of name changes that occur in a family law case: the restoration of the Wife’s name to her maiden name or other previous name and the changing of the name of a minor child in a divorce or custody case.

In a divorce case, if you are the party seeking to have your maiden or other name restored you should indicate such in either the divorce petition or the response, depending on your status in the case. That being said, you do not have to make the decision right away, but it helps to indicate from the beginning that this is something you are considering.  So long as you raise the issue with the court prior to the decree of dissolution entering you can change your name as part of the proceedings.  It should be noted that the other side has no say or control in terms of your requested name change.  Fortunately, statute (C.R.S. 14-10-120.2) also authorizes the filing of a request to restore a maiden name after the decree enters, should someone change their mind later on. Continue reading

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By: Stephen J. Plog

In many Colorado divorce and child custody cases, it’s not uncommon to see situations in which one party or the other fails to follow the court’s orders, whether financial or child related in nature.   When orders are not followed, the aggrieved party is left with various remedies to consider, one of which is filing a motion and affidavit for contempt of court pursuant to Colorado Rules of Civil Procedure Rule 107.

The filing of a motion for contempt of court essentially entails setting forth allegations within the motion alleging that there are court orders in place, that the other party is aware of the court orders, that the other party has failed to follow those court orders, and that that party had/has the ability to follow the relevant, violated court orders.   Once filed, the court will give the contempt motion a prima facia review, after which it will normally issue a citation instructing the violating party to appear in court, at a certain time, to answer as to the allegations.   The initial hearing is generally for advisement purposes, at which time the accused will plead guilty or not guilty.  If “not guilty” is the plea then an evidentiary hearing will be set, to take place a few weeks, or months, down the road. Continue reading