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.