In the State of Colorado, when you have a pending family law case before the court, such as a divorce filing, allocation of parental responsibilities filing, post-decree modifications, etc., courts typically require that the parties attempt alternative dispute resolution (ADR). In fact, C.R.S. 13-22-301, et seq. states that courts can require the parties of a contested issue or dispute to engage in some form of alternate dispute resolution. The mediation is the most common form of alternate dispute resolution utilized by family law litigants, there are methods by which parties may elect to resolve their issues.

1. Mediation

Mediation is a process in which a neutral third party (the mediator) meets with the parties and facilitates an attempt to resolve disputes and reach a settlement. The process is confidential and resolution is not mandatory. This means that you cannot disclose to the court what was discussed, proposed, or rejected during the mediation process. Furthermore, as parties are not obligated to reach a settlement agreement, you can reach a full agreement, a partial agreement, or no agreement at all. If any agreement is reached, it is highly recommended that you get it reduced to writing and signed, as verbal confirmation in mediation is not going to constitute a binding agreement that the court can then subsequently enforce.

Mediation can conducted by either a private mediator or one obtained through the Office of Dispute Resolution (ODR). Effective January 2, 2018, the Office of the Chief Justice recently ordered an increase to the ODR fee schedule. For domestic relations cases, the cost is now $150.00 per hour; $75.00 per party per hour. A minimum of two (2) hours is required. If a party is unable to afford their portion of the mediation, they may request a waived fee under C.R.S. 13-22-305(3). You will be paired with a designated mediator based upon any requests and their availability.

Private mediators are also available to provide dispute resolution services that satisfy the ADR requirement and can typically range in price between $150-$350 per hour. You should speak with your attorney about whether they believe a private mediator may be better suited to your case needs. Most private mediators are practicing attorneys, retired attorneys, retired magistrates or judges, or have specific specialties and knowledge related to a particular area of study. For example, if you have a case with complicated financial assets, property division, or high conflict parties, a private mediator may be able to offer you more guidance and insight based upon their experiences. If the parties are unable to reach an agreement regarding selecting a private mediator, ODR is the court mandated default. As with ODR, the process is confidential and reaching an agreement is not required.

2. Early Neutral Assessment

Early Neutral Assessment (ENA) is a specialized service made available to parties with contested issues regarding minor children only. Check to see if this service is being offered in your judicial district. The cost per session is $400 and the parties must complete a minimum of four (4) hours. You will be assigned to a team that is compromised of one male and one female and of those two, one will be an attorney and the other will be a mental health professional. Their goal is to work with the parties to help reach a comprehensive parenting plan that is truly customized to your child’s needs. This process is also confidential, the same as the other dispute resolution options. As with mediation, the parties reaching an agreement is not required. Likewise, parties are not required to engage in ENA and, thus, ENA will only occur by mutual agreement.

3. Arbitration

Arbitration is another option for reaching a resolution, but operates very differently from the other resolution options. In this scenario, you and the other party are agreeing to give an appointed third party the authority to hear your positions and issue an enforceable order. Arbitration is not common and is generally not going to be viewed as an alternative to mediation for satisfying the ADR requirement. A later blog post will delve further into the pros and cons of arbitration and what it entails. As with ENA, arbitration can only be entered into by mutual agreement and cannot be ordered by the court. In essence, arbitration entails basically handing over decision making authority to a private judge. Though arbitration will generally entail courts like procedures and outcomes, the parties have the ability to dictate the scope and the rules, which is something they would not have if actually going to a hearing before the court.

The courts have started a progressive shift toward giving parties opportunities to resolve their issues before litigating them at trial. Studies show that parties are more likely to minimize conflict in the future when they participate in their own settlement agreements than when an order is simply issued by the court. The path your case takes towards resolution is up to you and the other party. Before going down the road to full blown litigation, you at least owe it to yourself to investigate other options.

As technology advances, it also impacts the way parties to a Denver family law case may try to present evidence to the court. However, these advancements are not always for the better. One major development is the creation of cell phone apps that purport to allow you to print off the text message from your phone. These apps make it sound perfect for a court proceeding- what better way to present your text message evidence to the court than through an app that coverts your text messages into one complete document? The problem with these apps is the method by which they convert the text messages to be printed out. If you try using such an app, you will find that what is printed out is basically a document of typed conversations. It really looks no different than what you could create in a word processed document. In other words, it is not as if the app is printing the text messages as depicted on your phone. The app converts the text message format and, through this conversion, changes the reliability/authenticity of the text message conversation.

In order to admit a document into evidence, pursuant to the Colorado Rules of Evidence, the court needs it to be authenticated. In other words, the court typically needs a witness to confirm that the document is what it purports to be. However, getting a document admitted is only the first step. Once a document is admitted the court gets to decide how much weight it gives a particular document. In other words, a report from an impartial expert on the case, who may have conducted a detailed investigation, met with the parties, the children, and made insightful recommendations to the court, may be given significantly more weight than a letter from a party’s mother saying they are a great parent. Both documents may be admitted because the expert and mother confirmed the submitted document was what the attorney was claiming it to be. That does not mean, though, that the judge will view both documents with the same amount of consideration.

The text message app is problematic not only because it impacts the authenticity of the text messages, it also impacts the weight the judge may give the messages if admitted. In other words, it is possible the court could refuse to even admit the text messages converted and printed from the app into evidence (meaning the judge would not read them) because there is no way to verify the messages are what they claim to be. Unless a party reviews the text messages converted and printed from the app with all the text messages on their phone, they cannot definitively say the messages are a complete and accurate record of the text message conversation. Additionally, because it is an independent technological app doing the converting, and not the party, there may be issues with chain of custody such that the party cannot definitively confirm how the text messages were converted or that they are accurate.

As discussed above, getting the text messages admitted is only half the battle, though, you still want the judge to give sufficient weight to the evidence you are presenting. The biggest problem with these text message apps is that the text message chain they generate appears no different than what a party could have sat down at their computer and typed up. The text messages no longer appear as part of a text message chain, nor is there any verification of sending party, etc. What will carry significantly more weight with the court is screenshots of the actual text message chain from your phone. That shows the actual conversation to the court (obviously it is not foolproof, as text messages can be deleted, sending parties changed, etc., but it has more reliability than what is generated by the text message app, which means it will likely carry more weight with the court).

Though I generally find text messages to be used more often when dealing with a child custody case, they might also be used related to property or support issues in a divorce case. The best way to preserve potential text message evidence is to screenshot it when it comes in and email that screenshot to yourself. That way you do not lose the message if it is auto archived and you have the conversation to show the court in actual form. I have seen too many cases in which a client believes they have text messages of worth, but their phone goes missing or is broken, such that the messages cannot be retrieved. Therefore, taking screenshots and emailing them to yourself is the best way to preserve the text message record. More and more parties rely on these text message apps and allow their actual texts to be deleted or archived, which can adversely affect their case with the court tied into admissibility or reliability. Text messages may be strategically helpful for various reasons. You just need to make sure they are presented in a usable, and admissible manner. Apps converting text messages into a document of the relevant conversation just are going to cut it in court.

The goal of this series of blog posts is to help people who have not been through a family law court hearing anticipate what questions they may face from the judge, opposing counsel, or the opposing party during that hearing. Part 1 of this series focused on what questions may be asked during a hearing on supposal and/or child support. In Part 2 of this family law article, focused on what questions may be asked during a hearing regarding child-related issues (decision-making and/or parenting time). This last part will focus on what questions might be asked during a divorce hearing regarding issues of property/debt allocation, attorney’s fees, and other miscellaneous questions that may be faced.

For a hearing regarding the division of property in a divorce, and debts, you may be asked some of the following questions:
– What is the value of your home?
– Where/how did you come up with such value (i.e., was it appraised, is it just based on Zillow, the county assessor’s site, etc.)?
* Keep in mind, if it is based off an appraisal, unless both parties agree to the value, you would need the appraiser in court to testify as an expert about his or her report. You cannot just ask the court to read the appraisal without either having an agreement to do so or the appraiser to testify.
– Was the house purchased during the marriage?
– If not, what was the value on the date of marriage and how was it calculated?
– Whose name(s) is/are on the title?
– Is there a loan?
– What is the outstanding balance of the loan?
– Is the loan jointly held or only in one party’s name?
– Are there any joint bank accounts?
– What is the value of each?
– How should those be divided?
– Are there any accounts in your individual name?
– What is the value of those?
– Did you have those prior to the marriage?
– What was the value at the time of marriage?
* If you are trying to claim there is separate value in a separate bank account, you have the burden to trace the funds back to the date of marriage and prove they have remained in the account during the marriage, do not just expect the other party or the judge to ask you for this type of information.
– Do you have any life insurance policies and, if so, is there a cash value?
– Do you have any retirement accounts and, if so, what is the value?
If you are self-employed, you may be asked about the value of the business and how such was calculated. A business can have a value beyond what is in a bank account and the property it owns. To determine the “goodwill” and market value of a business, an expert would be needed.

– For any credit card debt you have- you may be asked when such debt was incurred and the purpose in order to determine what was used for marital expenses.
– For any other debt, such as student loans, tax debt, etc., you may be asked the outstanding amount, when it was incurred, who has been making the payments towards it, and if the other party benefitted from it.
– What are you requesting in terms of the overall division of property and debt?
– Do you think that is an equitable division?
– Why or why not?
– Did both parties contribute to the household during the marriage and, if so, how?

There are two bases on which one party could be ordered to pay the other party’s attorney fees. The first basis is if there is financial disparity such that the court thinks an award of attorney fees would be fair or equitable. For this type of attorney fees request, you may face the following questions:

If you are the party requesting attorney fees:
– You may be asked about your income situation (see the questions regarding income from Part 1 of this series)
– What financial resources do you have available to you?
– Has anyone been paying your attorney fees directly?
– Are you under any contract or agreement to repay them?
– If you have been paying your attorney fees, how have you been paying them to date?
– Provide proof of how much you have incurred in attorney fees, what they were incurred for, and how they were paid.

If you are the party being asked to pay attorney fees:
– You may be asked about your income situation (see the questions regarding income from Part 2 of this series)
– What financial resources do you have available to you?
– Have you incurred attorney fees?
What have you incurred in attorney fees, what were they incurred for, and how were they paid?
Your ability to pay fees for the other party.

The other basis under which a party could be ordered to pay the other party’s attorney fees is if they make an argument that is substantially frivolous, groundless or vexatious. If you are the party requesting attorney fees in this scenario, under C.R.S. 13-17-101, you will need to demonstrate how much you incurred in attorney fees related to the matter and why you think the other party’s argument is substantially frivolous, groundless or vexatious. If you are the party being asked to pay attorney fees, you need to be able to defend the law and facts behind your argument. Since these types of arguments flow on such a case by case basis, including specific questions you may be asked is not feasible in this blog post.

This is not a comprehensive list of all the Colorado divorce or family law related questions you may be asked but it is intended to give an idea of potential questions that may be asked to better allow you to prepare for any potential hearing. Additionally, presenting evidence at a hearing consists of more than just answering questions. You also need to be prepared to prove your answers and evidence to the court through the presentation of exhibits. Information on hearing procedures and what to expect at a hearing, besides the questions, can be found in other blog posts listed on our site(s).

When your case entails contested litigation and moves towards a court hearing, you and the other party will ultimately need to present your evidence and arguments to the judge. The end result of your hearing will be the entry of orders regarding the various issues. Hearings scheduled by the court can range from as little as thirty minutes to several days. Post-decree modification hearings might take two hours, while a contested, final divorce hearing could be set for all day. In all proceedings, the time to present your testimony and arguments (your case) will generally be split equally between the two sides. As such, it’s important to make sure that your time is not only used wisely but that you also make the best impression you can while presenting your testimony to the court. Getting to the truth and assessing witness credibility is one of the primary goals of any court proceeding.

Following the testimony of both parties and any other witnesses, the court will provide its order to the parties. During this order, the judge or magistrate will generally make a finding as to the credibility of the parties and any other witnesses. This determination of credibility, or not, could have a significant impact on what the court ultimately concludes. You may be saying the right things in terms of your story or conveying relevant facts, but if the court does not find you to be credible (truthful), it may not matter. Some witnesses have built in credibility. These include, but are certainly not limited, to professionals who review the case, public persons, such as police officers, or perhaps neutral witnesses, with no vested interest in the outcome. As a lay witness with an interest in the hearing, it’s important to make sure your credibility stays intact and there are things that you can do to ensure that your credibility is not questioned.

The first and most obvious instruction Denver family law attorneys will tell you to follow when testifying is to simply tell the truth. Judges hear testimony all day long, most days of the year, and can generally pick up on the (sometimes) subtle clues that a person is not being honest. On cross examination, if the testimony is torn apart, this will make a poor impression on the court. It is best to stick to the facts.

Following that basic rule, there are other items that the court reviews which can greatly damage your credibility at hearing. First, when you are filling out documents which the court will review, such as a sworn financial statement or discovery responses, do not embellish or exaggerate the numbers. These two documents are notarized and verified, meaning that they are sworn to as to their accuracy and truthfulness. For example, if you attempt to exaggerate the numbers on your financial statement for maintenance (alimony) purposes, the other attorney will review each and every figure to determine how those figures were reached. At hearing, if you cannot explain a number which you have sworn to, this alone could raise concerns for the court as to your ability to speak credibly, even on other, unrelated subjects. The judge will also be reviewing these figures or statements during your testimony and has the ability to follow up with any questions he/she may have. If the judge is pushing you to explain a figure or statement, it is a fairly good sign that they are questioning the information that you provided. That does not mean that every number you list in your financial statement must be 100% accurate, down to the penny. It does means that if you place a figure in the financial statement which you claim to be paying, you need need to be able to back that figure up with specifics as to amount, frequency, and who you are paying. It is okay to do estimates and averages, but you need to be as accurate as possible and ready to give plausible explanations.

Second, your courtroom appearance and the manner in which you give your testimony is important. When the other side is testifying, it is best to maintain a sense of calm, even if they are perjuring themselves. Judges are aware of a lot that goes on in their courtroom and their presence. If they observe you huffing and puffing towards a witness, mouthing things to the witness, and generally acting out, it may not go over well and may impact the way in which the court sees you.

Third, it is good to be aware of how you are making statements during your testimony and to remain consistent in your affect and answers. People are often very calm when their own attorney is asking them questions, but their tone and mannerisms can change drastically when they are being questioned by the other party or their counsel. This does not make a good impression and can leave you looking like your testimony is contrived. Becoming argumentative is easy to do but rarely results in an outcome that is wanted.

Finally, and most importantly, the judge is to be respected. Never argue with the judge. You generally only get one shot to put your best foot forward with the court. Divorce attorneys in Denver know just how important it is to appear credible to the court. We also know that the court is gauge your credibility with every word coming out of your mouth. You may have the best set of facts and circumstances to relay, but if you are not deemed to be credible they just may not matter.

Whether an initial divorce case, initial custody case, or a request to modify a prior custody or support order, you will generally receive an order from the court requiring you to attend a mediation session before the final hearing. Mediation orders vary from county to county (for example, some counties require mediation before they will set your contested hearing, or even your first court appearance, whereas other counties just require mediation to be completed within a certain amount of time before the hearing).

However, one common requirement for mediation in every county is that parties must mediate “in good faith.” That requirement, though, is generally not defined anywhere in the order. Therefore, people often question exactly what it means to mediate in “good faith.” One very important thing to note is that good faith mediation does not mean you have to reach agreements. You are never required to reach an agreement at mediation. Mediation is a confidential process and if no agreements are reached all the mediator tells the court is that the parties appeared, mediated, and no agreements were reached.

There are several actions that could be considered trying to mediate in bad faith, which are as follows:

1. Failing to provide any information to the other party before mediation: You will notice that most mediation orders contain a requirement to update financial disclosures within a certain amount of time before mediation and that, if financials are not updated, mediation could be cancelled. The point of mediation is to see if parties can resolve the issues in their case by agreement instead of having to go to a hearing to let the court decide. If there are financial issues on the table, it may be impossible to see if an agreement can be reached if financial disclosures have not be completed or updated because the other party may not be able to verify the financial status being discussed. Failure to comply with the requirement to provide and/or update financial disclosures before mediation could lead the other party to file a motion or other document with the court. They could try to claim that mediation either could not occur or was a waste of time due to insufficient information. In such motion, if mediation was still held, they could request reimbursement of mediation costs and/or attorney fees and costs to attend.
2. Leaving mid-mediation: Generally, mediation is to be held for a two hour minimum, unless the mediator decides prior to that point that mediation is not effective and decides to end mediation. If a party in the early stages of mediation gets frustrated and decides to just leave, contrary to the wishes/advice of the mediator, that could be considered a bad faith move.
3. Engaging in inappropriate behavior or language during mediation: Some mediators don’t mind if a party curses during mediation as an expression of frustration, so long as the other party is not in the same room. However, if mediation progresses to a point where both parties are in the same room, cursing, yelling or otherwise demeaning each other then the process is clearly ineffective and could be considered a bad faith move by the mediator.

Ultimately, the individual that will likely determine if mediation was conducted in bad faith is the mediator. Therefore, it is very important to read any paperwork, contracts or other information they provide detailing their expectations and to comply with any deadlines or ground rules the mediator sets forth. While it is always possible the other party may try to file a motion alleging bad faith, if the mediator’s compliance report indicates that the parties complied with the mediation requirement, it is likely the court will simply take the mediator’s word for it. Family law attorneys in Denver know that courts are all about people trying to settle matters on their own before going to a hearing and that the appearance of being unwilling to negotiate in good faith could be detrimental to your case. Again, judges don’t expect you to come to agreements, but they do expect you to give settlement a valid shot.

It is not uncommon for individuals to seek financial assistance when going through a divorce, custody, or modification case. Oftentimes, individuals seek financial assistance to cover attorney fees, the cost of retaining experts, or assistance with other financial items related to their cases. In other instances, people seek or receive help from family members or friends just to meet their needs, given the abrupt changes that come when families split up. Whatever the circumstances under which a person might need financial help, it’s important to understand that help from others can have potential ramifications in your case, primarily tied into income, debt, or how costs might be allocated. A few things to keep in mind when seeking or accepting financial assistance from others while going through your family law case are as follows:

1. Could the assistance be considered a gift and affect income calculations for spousal support and/or child support? One item enumerated in C.R.S. 14-10-115 as income for purposes of calculating alimony or child support is “monetary gifts.” Thus, if money is gifted to you to assist you throughout the proceedings, it could technically be included as income to you before the court calculates any spousal or child support. Generally, unless the gifts are consistent and anticipated, the court is likely to be hesitant to include such as income. A few ways to try to avoid the appearance of gift income would be to have friends or family members complete a promissory note, evidencing that the funds are being “loaned,” not gifted. If you take this step, it is recommended that you actively make payments as set forth in the promissory note; otherwise, the promissory note looks meaningless. At a minimum, it is advisable to document a date upon which payments are to commence, which can be some time after your case is done. Also, if the funds are from friends or family members, the court may be skeptical as to whether these individuals will actually require repayment down the road. However, a promissory note, or some other contemporaneous writing, at least provides evidence to the court that the assistance is for the limited purposes of helping get you through the court proceeding and is unlikely to continue in the future. If nothing more, have people put “loan” on the memo line of any check. Individuals seeking to provide assistance could also make payments to the attorney or expert directly. In that case, the other party could still try to argue it was money that lowered your expenses. However, if it was a one-time payment to an attorney or expert, the court is less likely to consider it as an on-going source of income.
2. What methods are being used to seek the financial assistance? As social media has become more common, it has also become a platform for individuals to use to request financial assistance. One such platform is the website “GoFundMe.” This is a platform individuals can use to raise money for a variety of reasons. Recently, it has become common for individuals to use GoFundMe like sites to raise money for assistance with attorney’s fees, expert fees, and other items related to family law cases. If this is a platform you are considering using to raise money, it is advised that you be very careful in terms of what language is communicated the site. Any references to or about the opposing party that are not 100% accurate could lead to allegations of defamation and slander. It is also common for friends and family members to create pages in an effort to assist; however, sometimes, in an effort to help, they may exaggerate or misstate facts and such could lead to accusations against you as well. Therefore, it is important to advise any friends or family members that seek to help by creating a social media platform for funding, to make sure that they get the facts correct.
3. Effect of Financial Contributions on Requests for Reimbursement of Attorneys’ Fees and/or Expert Costs. As discussed above, sometimes it’s advisable to have third parties pay your attorney or the expert directly to avoid accusations of gift income. However, in those circumstances, it is less likely the court would order the other party to reimburse your attorney fees and/or expert fees based on financial disparity since they were not paid by you directly. Even if family members give you a “loan” for such costs, though, it is unlikely the court will divide it as a marital debt since the court generally is skeptical about whether the family members would actually insist on repayment. Also, if third parties are paying any of your funds directly, be cautious as to how they are listed on your financial disclosures. If it is not an expense you are directly paying, it should not be listed as one of your personal expenses. However, if they provided said funds as a loan, you could list the debt owed to your lending benefactor in the debt section.
4. How should non-financial assistance be treated? Sometimes friends and family members don’t assist financially, but rather by giving you a place to stay once you move out of the former joint residence. In those instances, if financially feasible, pay as many of the expenses directly as you can. For example, if you are paying for your own food, keep track of the expense by saving receipts. It is also advisable you pay friends and family rent, a portion of the utilities, etc. to avoid appearing that you have more disposable income than you actually do. Moreover, getting housing, food, or things of that nature could also be argued to be income as the very charity you receive lowers your necessary living expenses.

In the practice of family law, even little, seemingly innocuous details can matter when it comes time to prove your positions in court or for settlement.

When starting an initial Colorado family law case, the two first steps are filing the initial case documents (Petition and Summons) and getting the other party served. Pursuant to the Colorado Rules of Civil Procedure, Rule 4, serving divorce papers generally comes in two forms: either the other party signs what is known as a Waiver and Acceptance of Service (acknowledging receipt of the documents and waiving the requirement for personal service) or the other party needs to be personally served (a sheriff or private process server needs to hand the initial case documents directly to the other party, to a family member over the age of 18 at the other party’s residence, or to the other party’s supervisor, secretary, administrative assistant, bookkeeper, human resources representative, or managing agent at his or her workplace).

However, the question sometimes arises, what is the next step if you do not know the home or work address of the other party? Many times, people simply decide to wait and not face the headache of trying to find the other person. Sitting back and doing nothing is generally not the best course of action to take, particularly in divorce cases. As long as you remain married, even if you have been physically separated for years, any property accrued (real estate, retirement, bank accounts, etc.) is generally considered marital property (with a few caveats). Also, the longer you remain married, the more likely it is that the other party may be entitled to your Social Security benefits due to the length of the marriage. Finally, as the duration of spousal maintenance (alimony) is tied into the length of the marriage, the longer the length of the marriage, the longer a term of spousal maintenance could last. Thus, it is often recommended that you take the time to track down the other party at the time you are thinking of pursuing a divorce case, rather than wait several years and ending up with a longer term marriage.

The first recommended step when trying to find the other party is through internet searches. There are several websites on which you can conduct people searches to obtain detailed information, for little to no cost (i.e., whitepages.com, Intelius, etc.). Many of these websites will not only provide the name, city, and state of each individual in the search result but, also the age and the names of known associates. Detailed free results can help you narrow your search and lessen your costs when it comes time to click on the paid features potentially necessary to get further detail. Another option for finding the other party online is to run a background check through the Colorado Bureau of Investigation or a general case search through CoCourts.com. If the other party has had other court cases in the state of Colorado, part of the court file may be public record from which you might be able to obtain a home or work address.

If those routes do not provide you with the other party’s address, you can look for a private process server that offers skip tracing services, which is a process they go through to locate the individual’s whereabouts. Some process servers offer skip tracing for less than $100. You might also consider a private investigator, who can work with the information you do have, including family information, to try to track the other party down. Of course hiring a private investigator can come with a significantly higher cost.

If the above stated efforts ultimately fail and you are truly unable to find the other party, you still have the statutory option of serving the other party via “publication.” Service by publication entails filing a motion with the court, which, if satisfied that you have made appropriate service efforts, will then authorize notice of the proceedings to be published in a local paper for a set period of time. After the time expires, the other party will be deemed to have been “served.”

However, service by publication limits the types of orders the court can enter. Service by publication does not allow the court to enter any orders requiring the other party to pay money (such as child support, spousal maintenance, etc.) because the court is not considered to have “personal” jurisdiction over that party. That being said, service by publication does allow the court to enter a divorce decree, divide some property, and make other orders that do not require “personal jurisdiction.”

Again, to serve the other party by publication you first need to request the court’s permission to do so. However, the court will not expect your efforts to include turning over every potential stone or expending great amounts of money before granting permission to serve by publication.

It should also be noted that the requirement to personally serve the other party only applies to brand new cases, such as a new divorce or custody case. It does not apply to post-decree proceedings, such as modifications. Thus, once final orders enter, service of motions, whether to modify or enforce orders, can generally be accomplished via regular U.S. mail, to the other party’s last known address. In light of the relaxed service requirements for post-decree actions, it’s very important you make sure your current address is always on file with the court. If you fail to update your address, a motion sent to the most recent address on file with the court will be deemed properly served, even if you no longer live there. Failure to respond can result in default orders against you.

Realistically, spouses normally keep in touch or keep track of each other and actually having to make efforts to find them is not an issue. However infrequently, most Denver family law attorneys have seen cases in which years go by after separation in which people do truly lose contact. Likewise, they see cases in which the other party goes to great lengths to hide out to avoid service. Your attorney will be able to advise you as to the most practical and efficient ways to try to track down an M.I.A. spouse or other party. Likewise, they will know how to serve by publication should the need arise.

As your family law case progresses to trial, the risks of letting a judge decide the course of your life and/or your children’s lives becomes a huge factor to consider if you are in a contentious divorce or post-divorce proceeding. No matter how strong you may perceive your position to be, taking a case to trial is always a gamble, and it is important to have the opinion of a lawyer with experience litigating to provide you the best information as to your best course. Though some cases can be straight forward such that the outcome seems certain, others can have a murkier outcome, depending on the law and the facts. Additionally, given the fact that each judge/court may view an issue differently, results can vary from courtroom to courtroom.

In any case, it’s important to know what the best case scenario of going to trial is, and the odds of that best case materializing. Likewise, it’s important to know what the worst case scenario of going to trial is, and the chances of that worst coming to pass. Where a compromise falls on that spectrum between the two scenarios should be one of the major factors to consider when making the decision regarding whether to settle or go to trial. Having an experienced attorney who knows the law, the judges, and the expert witnesses to inform you of the likelihoods of various outcomes can be extremely helpful in guiding you to the best decision.

The best argument for settlement of your case is that it produces a guaranteed result. If the settlement provides the majority of your desired outcomes, without risking your worst case scenario, then settlement might be the way to go. A bad judge, having a bad day, whose only knowledge of your family comes from the day you are in the courtroom can make a decision that is arbitrary and is your worst case scenario. Working with your Denver family law attorney to assess whether to settle, from a cost-benefit analysis, and mapped up with the risks, can greatly increase your chances of an outcome you can live with.

One important thing to consider is whether an expert witness is involved, and what their opinion is. For instance, in determinations on parenting issues, if a Child Family Investigator was appointed, their opinions and recommendations are very hard to overcome at trial, absent glaring malfeasance. If a Child Family Investigator makes recommendations contrary to your position, any compromise offered that is better than what the investigator recommends should be seriously considered.

Another important thing to consider is the intrinsic value of having a case done. The stress, animosity, and expense of active litigation can affects the quality of your life and that of your children. Having a matter settle amicably, with compromises on both sides, can improve communication with your ex-spouse or partner, which in turn reduces the anxiety of children down the road. Again, the key is whether that which you are giving up via compromise is less important that gaining certain finality.

A final thing to consider is the expense of trial. The trial preparation and trial itself are two of the most costly stages of litigation. While, using as an example the issue of child support, you may have a good case to have a judge order a higher amount of child support, but the costs of litigating that issue ends up being the equivalent of that extra amount of support for a period of many months. Assessing the ultimate cost of litigation mapped up with what you will gain at trial is always an important consideration for you and your attorney to discuss and your attorney should always be ready to assess those matters with you.

Each case is different. While many arguments can be made in favor of settlement, and while a majority of cases do settle, there does come a time when a line needs to be drawn. If you are the only one making offers of compromise, while the other party is not moving from their position, there’s usually no reason to bid against yourself just to get a settlement done. If the offer to settle is to accept something very close to your worst case scenario when you have some good arguments to make in court, then there’s really nothing to lose by taking your case to trial.

Furthermore, there are some cases, such as a relocation custody case, in which compromise just can’t be had, given the all-or-nothing issues at stake. The same can hold true for significant, immediate issues, such as instances in which you feel your children are endangered. Moreover, sometimes trial is preferable to prove a point, or based on principal.

As the client, the ultimate decision on whether to settle your case or go to hearing is up to you. Having an experienced family lawyer in Denver to help you assess how to proceed can give you the best chance for a good result in your legal matter.

The first step in understanding mediation is knowing what exactly mediation is and what it entails. Mediation is a process by which two parties to a case meet with a neutral, third person, whose sole function is to assist them in arriving at an agreement. The mediation process will generally entail the parties meeting with the mediator together, or in separate rooms, letting the mediator know each’s position on whatever issues need to be addressed, and then letting the mediator do his or her work in terms of trying to find compromise or middle ground between them. If the parties are able to find that common ground, the next step is generally to have the mediator, or the attorneys, put the agreement down in writing, preferably in a legally cognizable format, for signatures and submission to the court. Though this explanation is somewhat simplistic, it is an accurate representation of what mediation is and how it is conducted.

Beyond explanation of what mediation is, or entails, there are many finer points that the general public is just not aware of. Below, I will convey those finer points with the hope that a broader understanding is obtained by the reader.

1. Mediation is not a replacement for the court process. Often times, people will ask whether they can go to mediation in lieu of filing a court case. Mediation can be conducted before a case is filed, or during the court process. However, for any agreements arrived at in mediation to be binding and enforceable, a court case will still need to be filed. Thus, parties to a divorce may wish to mediate prior to filing a case, but will ultimately need to get that case filed before any agreements can become enforceable court orders. There is nothing precluding people from mediating prior to the filing of a case and submitting their agreement(s) with the initial filing. Generally, mediation occurs after a case is filed.

2. Mediators do not have power over the parties and do not make decisions. People often have the misconception that when they go to mediation they are entering into a process, much as a court hearing, in which they need to state their cases and persuade the mediatior, who will then make a decision. This is not true. The mediator has no power whatsoever to make decisions. The mediator does not need to be persuaded or impressed. The mediator does not take sides. When entering into mediation, the parties should be prepared to discuss their concerns, give some explanations, and state their positions, including their ranges or thresholds on the various issues. The mediator needs to be informed of the issues and positions so as to function effectively. Often times, the attorneys will jump in to state those positions in an efficient and succinct manner. Beyond the fact that the mediator has no power to make decisions, one must also keep in mind that the mediation process is confidential.

3. Mediation is confidential and that which is said in mediation is inadmissible in court. At the outset of mediation, the mediator will explain to the parties, whether they are with their attorneys or not, that the process is confidential. The mediator will also explain that he or she can only discuss with the other side that which you ask them to discuss. Thus, you may discuss 7 ideas with the mediator on how to resolve an issue, but only confer upon him or her the authority to take one idea to the other side. Without this confidentiality, there would be no faith or trust in the process. There would be no free flowing dialogue or sharing of ideas regarding settlement. In addition to confidentiality, that which is said in mediation is inadmissible in court, meaning your divorce or custody judge will never hear about what went on. At the beginning, the mediator will explain that he or she cannot be called, or subpoenaed, to testify in court. Likewise, his or her notes cannot be obtained. The only thing the court should hear from the mediator is that the parties attended mediation and participated in good faith. Again, if courts were privy to what the parties said in mediation, most mediations sessions would proceed with utter silence.

4. If an agreement is reached and signed at mediation, most family law judges will view that agreement as being binding. Mediation usually occurs at a stage in a case in which the issues have already been presented to the court and opposing party, and after such time as financial disclosures have already been exchanged. As such, courts will likely take the position that parties signing an agreement at mediation, who have already been provided with the information necessary to make informed decisions, knew what they were doing and agreed to, or accepted, offers made in an informed and reasoned fashion. This is certainly not an absolute, but is a loose rule of thumb. In light of this supposition, it is important to remember not to sign that agreement unless you are 100%+ sure that you can live with the agreement. Having your attorney present, armed with his or her knowledge of the law and court system, can help get agreements done as part of the process, as opposed to after the fact. One must keep in mind that attending mediation creates no requirement to come to an agreement. The choice is up to each party. One must also keep in mind that failing to come to agreements will likely lead to a continuation of the litigation process. It should also be noted that parties are free to come to partial agreements. For example, there may be argument regarding custody, property, and child support in a divorce case. There is nothing that precludes the parties from coming to an agreement on the property issues and the custody issues, while reserving the issue of child support for future court hearing or agreement down the road.

5. Mediation is required in some, not all counties. In almost every divorce and custody case in Arapahoe County or Douglas County, the court will require mediation. This goes for cases pre-decree, meaning before the case is finished, as well as post-decree cases, such as a modification case. Likewise, the Denver and Boulder district courts often times, but not always, require mediation for cases, whether pre or post decree. However, Jefferson and Adams County do not generally mandate that mediation occur. Some judges do and some don’t. When there is a requirement to mediate, the courts will generally send out an order giving a deadline to get mediation set, a deadline to get it done, and the next step to take with the court should mediation not be succesful. If your court has issued a mediation order, you must follow it. Absent a good excuse for noncompliance, your case or motion could be dismissed if you fail to follow a mediation order. C.R.S. 13-22-311 does afford litigants the opportunity to request an exemption from the mediation proces
s is some instances, such as if there is credible evidence that domestic violence has occured. This issue does arise from time to time, but not often.

6. It does cost money to mediate. The cost of mediation will vary depending on the route the parties choose to take. Parties to a Denver child custody or divorce case can choose to either use a private mediator, or they can use the state mediation service arranged through the Office of Dispute Resolution. The ODR handles mediation cases for all Colorado counties. When mediating through the ODR, the cost will generally be $120 per hour for the mediator, which will generally be split between the parties equally. Conversely, when utilizing a private mediator, the costs can range from as little as $100 per hour, up to $300 per hour or more, depending on the mediator used, his or her fees, and his or her level of experience. Each case is different. The parties’ income levels, the complexities in the case, and the liklihood of settlement should be factors for determining which type of mediator to use. Family law attorneys know that there are good mediators, both through ODR and in the private arena. The attorneys at Plog & Stein assess, with each case, which route is likely to lead to settlement and what is the most cost effective option. This will truly depend on the facts of the case and how feasible settlement is.

7. Not all mediators are created equally. There are good mediators and bad mediators. There are strong mediators and others who are somewhat wishy-washy. There are mediators who are efficient and mediators who are long winded. There are mediators who get the job done and mediators who seemingly just go through the motions. Your attorney will know which mediator will be a good fit for your case, from both a monetary, issues, and style standpoint. If time and money are going to be spent, finding the best fit possible does matter. One must keep in mind that successful mediation ultimately requires two parties desiring to get the case settled. As such, not all cases do settle and there are cases in which the best mediator cannot get the proverbial deal sealed. That being said, the more learned the mediator is in the field of family law, the better off the parties will be. Thus, it is important to make sure the mediator selected has specific family law knowledge. Our attorneys are keenly aware of who we believe gets the job done and what each case or situation calls for in terms of mediator selection.

8. Mediators do not give legal advice and do not take sides. Because mediators are not authorized to give legal advice and must remain neutral, parties to mediation should keep the mediator’s function in mind: reaching an agreement. As such, I would generally advise having your attorney attend mediation with you. In that scenario, you have someone their to seek advice, legal knowledge, or insights from as to how a court might view the issues, whether the proposed agreement legally fair and appropriate, etc. Again, the mediator cannot provide those insights. Your attorney can.

Set forth above are some of the basics of mediation and the mediation process. Mediation is not substitute for the court process, but certainly a part of it. Mediators are not attorneys representing the parties and are not charged with assessing and advising on what the right decisions are from a legal standpoint. Mediation can be an effective tool for resolving Colorado divorce, custody, and child support cases. The Denver family law lawyers at Plog & Stein, P.C. are always willing to attend mediation with our clients. Whether mediaton ultimately proves fruitful depends on the willingness of the parties to settle. Depending upon which county your case is in, you have a reasonable chance of being required to go to mediation at some point. Now you can enter the process a little more informed.

The above stated being said, it is important for attorneys and litigants in a divorce or custody situation to have knowledge of the judges they will be in front of. In Colorado, family law cases are not heard by juries. There is one person deciding how to deal with the facts and circumstances of each case and rendering a ruling. One must keep in mind that judges are human. One must also keep in mind that being human, judges may have individual view points on certain issues, such as parenting time for fathers, a person’s ability to work as relates to child support, or how a certain statutory section is interpreted. As an attorney, one must try to ascertain the realm of likely possibilities before each individual judge and understand what facts or arguments that judge is more likely than not to entertain or find important.

When your attorney says, “Well, I think this judge will rule this way on this issue,” the attorney is speaking from experience, courtroom knowledge, or information passed down from other attorneys. The attorney gives this guidance with the goal of assisting you in making decisions about how to proceed in your case. The attorney should be speaking from the standpoint of having your best interest in mind. When someone in a divorce case situation believes his or her attorney is truly looking out for him or her, that person should take the attorney’s advice to heart in terms of how to wade through the courtroom or litigation phase of the case, including whether to even proceed with hearing on a given day. We generally know the right move to make and are truly trying to help you. The point is that our experience and insights, coupled with familiarity regarding the courts we practice in helps you. That is our primary goal.

There is another old saying, “Knowledge is power.” Use your attorney’s knowledge to gain some power in a stressful and uncertain time.