By: 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 In those instances, the case can simply be voluntarily withdrawn or dismissed, pursuant to Colorado Rules of Civil Procedure, Rule 41, without even needing to notify the other party.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.
It should be noted that divorce attorneys can sometimes predict the likelihood of reconciliations lasting and, sadly, I would guess probably one out of three clients who attempts reconciliation ultimately comes back. As a final note on that subject, the record I have personally seen is a divorcing couple file 4 times over 3 years, with them finally proceeding the fourth time and getting divorced. I am at least happy to report that with all the time they had to ponder and plan, they were able to successfully settle their case without having to go to a final, contested hearing.
Aside from changing your mind as to proceeding with the original divorce, or even child custody case, litigation can ensue afterwards, such as with the filing of a motion, perhaps to modify child support. C.R.C.P. Rule 41 would also apply in instances in which the responding party to the motion has not yet responded.
Of course a divorce case entails so much more than proceeding with actually getting a divorce. Issues of marital property, child custody/parenting time, and spousal support will need to be dealt with. When dealing with those issues, there is opportunity to select a path or position on the various topics. There is also opportunity to change your mind in discussions. However, in some instances, once you lock into something in writing you may be stuck.
For example, under C.R.S. 14-10-112, a separation agreement (the comprehensive document setting forth the settled divorce terms) is going to be binding as to the allocation of property and debt, absent limited exceptions, such as one party pleading and/or the court finding that the agreement is unconscionable. Another way one might be able to undo the decision they made tied into allocation of marital property would be to plead that the other party failed to make adequate financial disclosures prior to the separation agreement being executed. In these instances, there is opportunity to change your mind or get out of the decision you made. Usually these exception scenarios will not be present and a party will be stuck. Thus, it is critical to make 100%, if not 1000%, certain that you are okay with your agreement. Talk it out with your attorney, more than once if need be, before you sign on that dotted line.
A final scenario in which we have seen people attempt to change their minds is when they submit a stipulation, such as a memorandum of understanding entered into at mediation, to the court, only to change their minds prior to their court hearing. They might have agreed to a parenting time schedule or a child support figure, only to have buyer’s remorse a few days or weeks later. The general rule attorneys go by is that courts are not likely going to let you out of a properly negotiated settlement once it’s put into writing and filed. If you do change your mind you will need to work with your attorney to try to find a well articulated reason to put forth to the court. Again, be certain before you sign on the dotted line.
While typing, I’ve thought of one more situation we’ve seen have tragic results for some people, who might come to us after having completed their divorces on their own or with another family law firm. That situation ties into alimony (spousal maintenance). C.R.S. 14-10-114 allows people to enter into “contractual” maintenance agreements in which they lock into both the amount and duration of the alimony. When such an agreement is executed, submitted, and adopted by the court, there is no getting out of it. While it sounded like a good idea at the time, circumstances, such as a job loss, might arise, which unfortunately will not get the payer out of his or her obligation.
The key to anything in a family law case, whether divorce or child custody, is to thoroughly understand the ramifications of your actions and decisions prior to making them official. As such, you should discuss with your divorce attorney each significant decision you make and the ramifications of locking in. In some situations you only get one shot, and it might not be able to be undone.