Divorce Frequently Asked Questions: Court
- Can I appeal the court’s final orders in my divorce?
- How long do we have to wait for the court to make the divorce final?
- If we agree on everything, do we have to go to court?
- Do we have to go to court if we agree on everything in our divorce?
- In a divorce case, how do courts generally deal with dividing furniture and household items?
- Is there a court fee for filing divorce?
- What is a non-appearance affidavit?
- What is formal discovery?
- What is the difference between a judge and a magistrate, and who will hear my divorce case?
- What is the initial status conference in a divorce case?
- What issues does the court decide?
- Can I appeal the court’s final orders in my divorce? Yes. If a party disagrees with the courts final orders in a divorce, whether related to child custody, division of property, maintenance, or any other issues on which the court has rules, he or she has the right to appeal the ruling to the Colorado Court of Appeals. An appeal is going to be based on judicial error, whether procedural or substantive. Appeals must be filed within ____ days of the court signing off on the final order, or within the same time from the court denying any post trial relief made pursuant to the Colorado Rules of Civil Procedure, rule 59. The rules for appeal differ greatly from the rules related to the initial divorce and the appellate court will be looking at the overall record in the divorce case to determine if error occurred. With an appeal, new facts and circumstances are not part of the argument and there is no “trial” with testimony being taken or evidence being received. Rather, an appeal is generally going to be won or lost with the writing of legal briefs and the arguments made. Some appeals may ultimately be selected for oral argument in front of the appellate court. One must keep in mind not liking the court’s final divorce ruling and having legitimate grounds for appeal based on judicial error are two entirely different things. Appellate attorneys know and understand the distinct rules and procedures for family law appeals. Plog & Stein, P.C. offers appellate services to parties defending against an appeal.
- How long do we have to wait for the court to make the divorce final?In a Colorado divorce, there is a statutory 90-day waiting period from the filing of the case or service upon the other party, whichever comes later. In reality, most cases take much longer. Our legal team only sees cases completed in that 90-day time frame when the parties agree upon each and every issue and put together a full agreement reflecting such. Beyond the final agreement, the court will also be checking to make sure all financial disclosures pursuant to C.R.C.P. Rule 16.2(e)(2) have been exchanged and/or filed with the court. Additionally, the court will make sure that the mandatory parenting class has been completed in cases involving minor children. Assuming all these things are done, the decree finalizing the divorce can be entered after that 90th day.
- If we agree on everything, do we have to go to court?If you do not agree to all issues in your divorce case you will have to go to court so that the judge can decide the outcome. However, if you do agree, you may be able to do everything by submitting paperwork, never having to set foot in the courthouse. If both parties agree to all issues and can get their paperwork in, including financial disclosures and written agreements, prior to the initial status conference, which generally occurs roughly 40 days from when the case is filed, they can submit all paperwork, along with what is called an Affidavit for Entry of Decree Without Appearance of the Parties. This document lets the court know that all issues are resolved and that the decree can be signed off on without anyone showing up. This situation applies in all cases in which there are two attorneys or in situations in which there is one, or no, attorney, but there are no kids. If there are children and at least on party has no lawyer, the parties will have to show up for a five-minute formality hearing in which a few minor questions will be asked, then decree will enter. Your attorney can explain all of this to you.
- Do we have to go to court if we agree on everything in our divorce?The answer to this question depends on various factors. In instances in which there are attorneys on both sides and the parties have agreed upon all issues, in writing, an “affidavit for entry of decree without appearance of the parties” can be submitted to the court. This document, which is signed and notarized by both parties, indicates to the court that all issues are resolved and requests that decree be entered without anyone appearing. Parties to a divorce without attorneys, in which there are no children, can also submit an affidavit for entry of decree without appearance of the parties. In instances in which the parties to a divorce submit such an affidavit, the court will generally grant the “decree” without anyone appearing in court. However, pursuant to C.R.S. 14-10-120.3, the court can still require the parties to come in for a hearing, though it generally will not. When there are child/ custody issues and one or both parties is not represented by an attorney, the court will require the parties to come in for a final “uncontested hearing,” even if they have submitted a written agreement on all issues.
- In a divorce case, how do courts generally deal with dividing furniture and household items?Furniture and household items, just like more significant items, such as houses or 401Ks, are property subject to the court’s jurisdiction regarding the equitable division of such items. Though furnishings are certainly important to the parties, the reality is that most Denver area divorce courts or judges loathe dealing with such issues. In light of this, we always encourage clients to try to work with their respective spouses to agree on these items. Cases do come along, from time to time, in which people may be fighting over Picasso’s or Rembrandt’s. However, in reality, the average family has the traditional couches, tables, televisions, etc. As with other property in a divorce, if the issue goes before a judge, he or she will really look at the fair market value. People often presume that the purchase or replacement cost of an item of furniture is what the court will go by. This is just not true. Many metro area judges will indicate, preemptively, that they will either order a garage sale of the contested household items, with the proceeds to be split, or that they will have the parties flip a coin to see who goes first selecting the items, one at a time, in the home. When faced with the possibility of having to sell everything and start over with the furnishing of a home, the notion of coming to an agreement on such matters becomes much more attractive. Likewise, though attorneys will certainly assist with this process or become involved regarding the debate of furnishings, it is generally better for parties to work this out on their own. It is not that uncommon, once agreement is reached, to put together lists of who gets what, which can be incorporated by reference into any divorce agreement or final order.
- Is there a court fee for filing divorce?Yes. Pursuant to Colorado statute, there is a $230 fee required for filing a divorce. This fee is paid for essentially all the case. When the case if filed by your divorce attorney, the firm will bear the initial cost from the state, which will then be passed onto you through billing. Just as there is a cost to file a divorce, there is also a cost to respond. Specifically, the response fee set forth in statute is $116. Likewise, this will also initially be billed to your attorney. There are also fees charged by the courts for filing motions for modification of orders, whether for child issues or child support. Specifically, the fee is $105. Beyond the statutory filing fees, most courts in the Denver area require attorneys to file documents or court pleadings electronically, through a state system called ICCES. Sadly, each filing with the court will bring an ICCES fee of somewhere between $6 and $13 depending on the document(s) filed.
- What is a non-appearance affidavit?In divorce cases in which there are no children, or there are attorneys representing each spouse, the parties can file, along with all other required documents, what is called an Affidavit for Entry of Decree Without Appearance of the Parties, referred to by attorneys and courts as a “non-appearance affidavit.” This document asks the court to go ahead and enter the decree of dissolution of marriage without any of the parties having to show up. A non-appearance affidavit is only used in instances in which there is full agreement. From an efficiency and cost perspective, the affidavit is a great tool for cutting down on both time and attorney costs. In divorce cases with children, but not two attorneys, the court needs to hear from each party, in person, that all agreements regarding the children are in their best interests before it can enter the decree.
- What is formal discovery?With any divorce, child custody, or child support case, each side is required, pursuant to Colorado Rules of Civil Procedure, Rule 16.2, to provide various forms of financial disclosure. Specifically, each side in a divorce is required to provide a sworn financial statement, supporting documents, and a disclosure certificate specifically indicating what documents they have provided. Documents to be provide under the general disclosure rules include pay stubs, bank statements, account information, debt information, and more. Generally, the financial disclosure rules require the exchanging of “most recent” statements items such as bank, retirement, or credit card statements. Typically, three months of pay stubs and three years of federal and state tax returns (business and personal) must also be exchanged. Despite the fairly detailed nature of formal financial disclosures, from time to time, cases arise in which the general rules of disclosure just don’t provide enough information as may be needed. As such, statute authorizes the issuance of “discovery,” which is essentially heightened requests for information and a requirement to respond to those requests.Discovery requests can come in various forms and can include depositions. Discovery will usually entail both the requesting of certain documents from the other party and the asking of specific, case related questions. In a divorce or family law case, the discovery questions will commonly come in the form of “interrogatories.” Interrogatories will either be “pattern,” meaning containing specific questions already set forth in a state form specifically tailored to family law cases, or “non-pattern,” meaning drafted by the asking party tied into a particular line of questioning. Interrogatories typically tie into either financial or child custody related issues. Though all the statutorily prescribed pattern questions can be asked, parties are typically only allowed to ask ten (10) non-pattern question.Documents will be requested through a “request for production of documents,” which can also be pattern or non-pattern. The pattern requests will generally consist of requesting information regarding bank accounts (3 years), investment accounts, business dealings, credit card statements (2 years), and more. Depending on the specific issues in your case, you may need more documentation than that which is set forth in the pattern requests. In a child support or alimony case in which one person is unemployed, underemployed, or claiming they can’t work, documents may be needed tied into their disability or job search efforts. Perhaps more than three years of banks statements or tax records might be necessary in cases in which there is a marital business. Your attorney will tailor questions tied into the issues in your case and what he or she needs to prove your positions.Discovery must be issued no later than 63 days before your final hearing. Responses to that discovery are due within 35 days of it being issued. Failure to respond can result in sanctions from the court, which may be sought by the other side via a Motion to Compel, filed pursuant to C.R.C.P. Rule 37. Sanctions for failing to properly respond to issued discovery can include preclusion of evidence and attorney fees and costs.
Though some attorneys issue discovery as a matter of course, and in a sometimes wasteful manner, the attorneys at Plog & Stein only issue it when there is more information that is truly needed to prove a fact or support evidence in a case. Such instances might include cases in which the other party is self-employed or owns a business, or perhaps in cases in which someone is trying to hide assets or claiming they cannot work. In those instances, normal financial disclosures just don’t provide enough information necessary to prove the requisite legal points at hearing.
Answering discovery requests can be tedious and onerous, but is, again, necessary. If questions or requests are simply ridiculous or over burdensome, one can raise certain objections with the court. Objections or requests for protective orders must be set forth, in writing, and made within the time frame allowed to respond to the issued discovery. Our experienced Denver family law attorneys can assist with both determining when and if discovery is needed, as well as with determining how discovery issued by the other side should be addressed.
- What is the difference between a judge and a magistrate, and who will hear my divorce case?In most divorce cases in the Denver area, the case will be divided up into a couple of stages. At the initial stages, the case will likely be dealt with by a magistrate. Magistrates will generally deal with initial status conferences, temporary orders hearings, and issues in the case prior to temporary orders. In most cases, unless the parties expressly consent to a magistrate, the final divorce hearing will be heard by a judge. In divorce cases, the primary powers a judge has that a magistrate does not relate to a final division of property and assets and the final allocation of custody (parental responsibilities). Thus, should your divorce case proceed from start to finish in a contested fashion, you will like deal with both a magistrate and a judge at various points in the case. One must keep in mind that a magistrate’s authority in terms of the effect of his or her rulings or orders is no different than that of a judge. Our legal team deals with both magistrates and judges on a regular basis, and strives to become familiar with how each functions in terms of their views on various aspects of divorce law and your case.
- What is the initial status conference in a divorce case?Pursuant to Colorado Rules of Civil Procedure, Rule 16.2, all divorce and custody cases require an initial status conference, which should be held within 40 days of the case being filed. This conference is generally held in front of the court facilitator (not a judge) or a magistrate or judge. The conference is essentially a meet-and-greet with the court for the parties to discuss the issues, whether related to kids, child support, property, or otherwise, so that the court can get an assessment of the issues and how to proceed. In the Denver area divorce courts, it is generally presumed that people will have their financial disclosures completed and their parenting class taken prior to the conference, though such is not always the case. Orders will generally not be dealt with at the initial conference, as it is not a hearing. However, in some jurisdictions, the magistrates might enter orders if they perceive an emergency situation. If there are two attorneys on your divorce or custody case, the parties can agree to get out of having to go to the initial conference via the filing of what is called a Stipulated Case Management Plan, which informs the court how the parties will proceed with the case. This can be an efficient alternative to the parties spending money on their attorneys to essentially say “hello” to the court. We can help you determine whether you need to attend this conference.