By: James C. McTurnan
The judge in a divorce case has the unenviable task of disentangling the lives and livelihoods of spouses who are unable to reach agreements on their own. Often, the lives of divorcing spouses are complex, and it is not unusual for any case to have its fair share of challenging issues. However, at times, an issue comes along that tests the boundaries of the norms in a divorce case. One such issue has been put before the Colorado courts not once, but twice in recent years: what happens when the “assets” of the parties to the divorce case are frozen…cryogenically? There have been two recent Colorado cases that delve into the disposition of cryogenically frozen pre-embryos that, if implanted successfully, would lead to new human life. To resolve any dispute, a judge must engage in an analysis that is comprehensive, unbiased, well-reasoned, and ultimately fair to the litigants. Resolving a dispute on the disposition of cryogenically frozen pre-embryos compels the Judge to navigate the outermost crossroads of science, existence, morality, and the ability of the law to adapt to our ever-changing understanding of the world around us.
What is most useful for a prospective divorce litigant in examining these cases, aside from an intriguing story, and the insight they give into our court system and the mechanics of legal analysis. To address even the most exotic legal issues, the analysis must begin with established legal principles, and follow a logical pathway to conclusion. The court, in In Re Marriage of Olsen, 2019 COA 80, utilizing the guidance of the recent Colorado Supreme Court decision in In Re Marriage of Rooks, 2018 CO 85, had to follow just such a process to reach its conclusions. Continue reading