Chapter 1: Representing Yourself In a Colorado Divorce or Family Law Case

This Guide is not a substitute for legal advice from an attorney, however provides a general overview of law and process.

Representing yourself is not easy, but it can be done. It will take a lot more time than you think that it should. You can also consider limited scope or unbundled legal assistance, where you are in charge of your case, however you hire an attorney to handle certain aspects of it yourself. Our limited scope fees are located here. This guide discusses limited-scope legal assistance. Limited scope assistance is not necessarily less expensive than full-scope representation overall, however it allows you to handle case phases individually and potentially in a manner that seems more financially viable for you.

I always say that if you can have an attorney you should, even just for parts of the case. In my firm, I have spent time fixing do it yourself agreements after the fact. There are some property settlement aspects that I also frequently answer questions about that can not be changed after the fact. For example, if a person waives spousal maintenance in a property settlement then they can't ask for it later. It is forever waived. So it is helpful to have the right advice up front. I also always say that if the other party has an attorney, then you should have an attorney.

This chapter uses the words divorce and dissolution interchangeably and also child custody and allocation of parental responsibilities interchangeably. Many states use the terms divorce and child custody, thus those terms are more commonly understood. In Colorado however, divorce is called dissolution and child custody is called allocation of parental responsibilities. Additionally, what is commonly called parental visitation in other states is called parenting time in Colorado. Further, alimony is called spousal maintenance in Colorado.

Overall, three tips for representing yourself are:

1. Have a plan. Research, consult, prepare and create a case and court plan.
2. Consider limited-scope assistance. If you feel that you can handle some of the case but not all, hire assistance for the parts that you need help with.
3. Stay focused on the narrow legal issues of relevance to the court. What is important to you is a lot broader than what is important to the court.

There are two types of cases – pre-decree and post-decree. A pre-decree case is one where a court order has not yet been issued. A post-decree case is one where a property settlement or child custody court order has already been issued. With a post-decree case, you are asking for enforcement or modification of the prior order or sometimes resolution of a parenting time dispute. The procedural process differs for pre and post-decree cases. There are fewer designated steps in post-decree cases, and they are more customized to the parties needs.

Domestic relations cases are guided by required procedures. The Colorado Rules of Civil Procedure (C.R.C.P.) set forth the procedures that have to be followed. The rules cover timeframes, deadlines, required documents and required actions. The Colorado Judicial Branch also publishes caseflow diagrams to help you understand the major events in dissolution of marriage and allocation of parental responsibilities (child custody) cases.

In a pre-decree case the process generally is:

• Draft a Petition, Case Information Sheet, and Summons
• File the Petition and Case Information Sheet with the Court
• Have the clerk sign the summons (If you are represented, your attorney can issue the summons)
• Have the filing documents served by a process server or the Sherriff
• Review Case Management Order upon issuance by the court
• Attend the Initial Status Conference
• Prepare and exchange financial disclosures
• Attend mediation
• Prepare for and attend a final orders hearing if the case is not resolved by negotiation or mediation

In a post-decree cases the process generally is:

• Draft a Motion (generally to enforce or modify or for a parenting time dispute)
• File the motion with the court
• Serve the motion by regular mail and e-mail (except for contempt, protection orders and emergency motions to restrict which require personal service)
• Review Case Management Order upon issuance by the court
• Attend an initial conference if one is set
• Prepare financial disclosures, if required
• Attend mediation
• Prepare for and attend a final orders hearing if the case is not resolved by negotiation or mediation

Prepare three forms: a Petition (JDF 1101 if for dissolution of marriage), a Case Information Sheet (JDF 1102), and a Summons (JDF 1102), which the court clerk can sign for you. If you are just asking the court to determine parenting matters then you file a Petition For Allocation of parental Responsibilities. If the other party does not agree to accept the filed documents and waive service of process, then arrange with a process server or Sherriff to have the other party personally served with a copy of the documents. Being notified of a legal action is a due process requirement based in the United States Constitution. After you receive the affidavit of service prepared by the process server, file it with the court. This establishes to the court that the other party was provided a copy of the filed documents. Service of process is necessary for a court to have jurisdiction over a case.

The Colorado Judicial Branch publishes a wide variety of fill-in-the blank JDF forms as well as instructions. You can utilize a search engine to locate the “Colorado Judicial Branch” website and then locate the forms and instructions section where you can download the forms. You can either sign up for electronic filing in order to file forms, or you can file the forms at the courthouse in person. If in Colorado, you can always file an action where the other party resides, however you may be able to file where you are if the location differs under certain circumstances. When children are involved, then an action is filed where the children reside generally. There are some exceptions to this in child custody matters depending on where the children have resided for the past six months. The Uniform Child Custody Jurisdiction Act (UCCJEA) governs interstate jurisdiction of child custody matters. Many members of the military find themselves involved in interstate custody matters due to frequent relocation.

Tip: Always keep date stamped copies of the documents that you file. Keep a file with all court documents received and sent to include orders form the court. In domestic relations cases, you can register for electronic filing and then have the ability to see and download all case documents.

There are usually two parties in a domestic relations case; the spouses and/or parents. There can be other parties on occasion if they intervene in the case, such as a grandparent seeking time with children. The parties are referred to as the Petitioner and Respondent. The Petitioner files the action and the Respondent responds. If the parties both sign the petition, then the Respondent is referred to as the Co-Petitioner.

When filing documents with the court, the other party must be provided with a copy so they have the opportunity to respond and participate. Initial documents filed in a pre-decree case must be delivered personally to the other party. The easiest method is to hire a process server, however the Sherriff’s Office can also serve process as well and they are less expensive. Post-decree documents, except for contempt, emergency motions to restrict, or protection order actions, which must be personally served, can be mailed to the last known address of the opposing party and they should also be e-mailed as well.

If you don’t know where the other party lives or works and have made diligent efforts to locate them, you can request service by publication from the court. You can serve the other party by publication which means publishing notice in a newspaper for six weeks. In order to serve this way, you have to submit a motion to the court requesting substituted service and describing your efforts to locate the party. Common search methods are talking with friends and family, sending the filings to the last known address, and reviewing social media. You can also pay to have a skip trace done for a review of public records databases. The Motion for Publication of Summons is JDF form 1301. You can find the rules governing service of process in C.R.C.P. Rules 4 and 5.

As soon as you file a Petition For Dissolution or Allocation of Parental Responsibilities (child custody), a court order goes into effect as to you. As soon as the other party is served with process, the order goes into effect as to them. The injunctions vary slightly for a dissolution and allocation of parental responsibilities and they are printed on the petition for each type of case as easy reference.

For a dissolution, the injunction is:

1. Both parties are restrained from transferring, encumbering, concealing, or in any way disposing of, without the consent of the other party or an Order of the Court, any marital property, except in the usual course of business or for the necessities of life. Each party is required to notify the other party of any proposed extraordinary expenditures and to account for all extraordinary expenditures made after the injunction is in effect;
2. Both parties are enjoined from molesting or disturbing the peace of the other party; and
3. Both parties are restrained, without at least 14 days’ advance notification and the written consent of the other party or an Order of the Court, from canceling, modifying, terminating, or allowing to lapse for nonpayment of premiums, any policy of health insurance, homeowners or renters insurance, or automobile insurance that provides coverage to either of the parties or any policy of life insurance that names either of the parties as a beneficiary.

The first provision is designed to preserve marital property for distribution and to avoid asset transfers to deprive a spouse of the asset. Customary expenditures relate to the standard of living of the marriage. What might be commonplace for one family might be extravagant for another. The second provision is intended to minimize displays of animosity surrounding the dissolution. The third provision is intended to maintain insurance coverage to avoid a loss to a party during the course of the dissolution. The idea is that no one should be cut off from basic resources in the course of a dissolution.

There is also an expectation that the parties will maintain the "status quo" of expense payments to the extent possible so that one party is not cut off from necessary resources. The ability to cover status quo expenses can be impacted by the cost of creating a second household during the pendency of the dissolution as it is more expensive to maintain two households than one. Thus "maintaining the status quo" is not an exact science and is a discretionary issue with the court if violations of the mandatory injunction are alleged.

For an allocation of parental responsibilities, the injunction is:

• "Do not sell, transfer, assign, borrow against, hide, or get rid of any marital property without permission of the other parent (or party) or the court. You may use your income for your usual business expenses and your usual life necessities.
• Do not disturb the peace of the other parent or parties in this case.
• Do not take the child(ren) in this case out of the state without permission from the court and/or the other parent (or party).
• Do not stop paying, cancel, or make any changes to health, homeowner’s, renter’s, automobile, or life insurance policies that cover the child(ren) or a party in this case or that name a child or a party as a beneficiary.

Exception: You may make changes to insurance coverage if you have written permission from the other parent or party or a court order, and you give at least 14 days’ Notice to the other party. C.R.S. § 14-10-107; 14-10-108."

The provisions and purposes are similar here except that in any case where children are involved, to include dissolution, the children can not be removed from the state by either parent without the consent of the other parent or a court order. The intent of this provision is that a parent will not flee with a child to avoid imposition of a court order regarding the child. If a parent does remove the child after they have received notice of a dissolution with children or an allocation of parental responsibilities, the court can order that parent to return the child to the state.

The court will issue a Case Management Order early in the case providing guidance about events and deadlines. In the Case Management Order, the court will provide some guidance on what to do and when to do it. Make sure to read the order and follow the requirements contained therein. The deadlines are important and if you miss them, there can be negative consequences such as an inability to submit evidence or sanctions. Always put the deadlines on a calendar to keep track of them.

Common things addressed in a case management order are:

• The Initial Status Conference
• Financial disclosure requirements and deadlines
• Discovery procedures and deadlines
• Disclosure or discovery disputes
• Motions procedures
• Procedures for continuances
• The mandatory parenting class for those with children
• Mediation
• Trial procedures
• Witnesses

The initial status conference is the first proceeding the case and is where deadlines are set for financial disclosures if they have not already been submitted. A temporary orders hearing can be requested at the conference if there are urgent issues about matters such as parenting time and support. The conferences are commonly conducted by phone with a Family Court Facilitator. In some jurisdictions, they are in front of a Judge. A Family Court Facilitator is an attorney, however is not a Judge.

The conferences are informal and no evidence is presented. If you are represented by counsel for this, then you should not have to say anything at the conference. Counsel will address any matters that arise for you. The conference should occur within 42 days of filing the petition. Because the financial disclosure deadline is 42 days after service of the petition, often the disclosure deadline occurs after the conference is held. At the conference, parties will generally be given two additional weeks to submit the disclosures.

Mediation will be discussed and you may be able to schedule mediation with the court at the conference. You can also schedule mediation with a private mediator. The court offers lower prices for mediators who are associated with the court through the Office of Dispute Resolution. You can also discuss the need for the appointment of any experts such as vocational evaluators, business valuators or child or family investigators.

All parties with children are required to take a parenting class designed to inform them of how to successfully co-parent during and after divorce. Divorce is difficult for the whole family. In particular, children may be impacted socially and academically during and after the divorce. Children are negatively impacted by parental conflict. The classes help parents understand how to support their children and reduce stress. The classes can be taken online and parents do not have to attend the classes together. Typical subjects covered are:

• Divorce finances
• Co-parenting
• Long-distance parenting
• Protecting children from adult matters
• Positive parental interaction

After service of a petition or a motion that involves child support or spousal maintenance (alimony), you have 42 days to submit financial disclosures. These consist of a sworn financial statement and the provision of supporting documents. You make a list of the documents provided in a Certificate of Compliance and file the financial statement and certificate with the court You don't file the supporting documents with the court but do exchange them with the other party. The purpose of financial disclosure is so parties can have essential information to make knowledgeable decisions about property and debt division as well as child support or spousal maintenance. The process of preparing the disclosures is time-consuming, however a court will not issue an order without them. If the other party does not fully disclose, then you will have to request a status conference with the court to address the matter.

Discovery is a process allowing one party to request additional information and documents from the other. Responding parties have 35 days to respond to discovery requests. The range of information and documents is substantially broader than what is collected through mandatory disclosure. While discovery can be time-consuming and expensive, it allows for enhanced case preparation. The two most common types of discovery in family law cases are Requests for Interrogatories and Requests For Production of Documents. Interrogatories are questions. In domestic relations court there are pattern interrogatories and requests. It is also possible to request ten nonpattern interrogatories and requests. These requests are written by the requestor and tailored to the specific needs of that case.

In domestic relations cases the pattern documents that can be requested are a broader timespan of documents than those produced in disclosure, such as three years of income statements, bank account statements, and credit card statements as opposed to the most recent statement or statements. For non--pattern questions for example, if parenting time or child custody is relevant, a parent can be asked to produce such items as school attendance records to show the frequency of school attendance while in one parent’s care. Parties answer discovery questions in writing under oath. A false statement constitutes perjury, which can be prosecuted as a crime.

Practical tip: Be aware that if you propound discovery, very often the opposing party will propound discovery as well. Therefore if you request, also be prepared to answer.

Another method of discovery is issuance of a subpoena. If you are not represented by counsel, then the Clerk of Court must sign a subpoena for you to issue. With a subpoena, you can request documents from third parties relevant to the case such as credit card records, bank records, and employment information. When issuing a subpoena, you have to provide a copy to the other party and they can move to quash the subpoena, meaning that they can ask the court to cancel the issuance of the subpoena. The third party can also move to quash the subpoena.

Discovery can aid in locating assets, which is important because if there is a material nondisclosure or misrepresentation of an asset or an asset value, then a dissolution case can be reopened for up to five years to reallocate the property division. For example, if a party vastly minimizes the value of a business asset in disclosure, the other party can ask the court to reopen the case to reallocate the value of that asset.

Part of the court process involves requesting remedies from the court. A request is made in a motion to ask the court for something. Then the other party can respond to the motion, and after that the first party can reply to a response. The response can not raise new issues outside of the motion, and the reply can not raise new issues outside of the response. Parties must confer before filing a motion. This means that you have to contact the other party to see if they agree with the motion or they are opposed, and let the court know whether the motion is opposed or unopposed.

The reason for conferral is so that the parties can discuss the situation and possibly reach agreement before asking the court to resolve the issue. A court can deny a motion if you do not confer or if you do not reference the legal basis for the motion. The standard JDF motions will have the relevant legal reference in the caption. However, you will not find a specific JDF form for many specific motions - just a general motion form. JDF 76 is the general motion form.

Top: Be mindful to make conscious decisions about what you ask the court for. Courts do not favor frequent filers, particularly if the request is not based in the law. If you represent yourself, then the legal research is up to you.

If parties do not reach an agreement, the court will decide some or all of the issues. Parties can resolve issues through negotiation or mediation. Mediation is a process where a third- party neutral assists the parties in attempting to resolve legal issues. Mediation is generally required by courts in domestic relations actions. Mediation communications are confidential in order to encourage open discussion. If parties feared having their words and offers used against them, then they would not be as open and fewer issues would be resolved in mediation. Courts prefer that parties resolve their own issues, if possible.

Mediation is generally conducted remotely with mediators going back and forth between the parties discussing the situation and relaying settlement offers. Most courts require two hours of mediation, however there is no limit and parties may mediate as many times as they like and as for long as they like. It is possible to utilize mediation to create a parenting plan and separation agreement to submit to the court for issuance as an order with the goal of resolving all issues. However, reaching complete agreement in mediation requires parties who are motivated and who can be civil to each other in the process.

If negotiation and mediation is not successful, then the court will decide the issues. You will prepare witnesses and evidence and file your evidence with the court, usually seven days prior to the hearing. The Petitioner presents first and then the Respondent follows. If the hearing is on a motion, then the person who filed the motion will present first. Although in other courts opening statements are common, they are not in domestic relations cases. Domestic relations hearings are very short in many jurisdictions.

It is important to focus on what is important to the court and plan your case so that you can efficiently and effectively present witnesses and evidence. It is actually harder to present a short case than a long one. Always keep in mind what is important to the court. Be guided by the legal standards that pertain to the issues in your case whether allocation of parental responsibility, property division or support.

Evidence is presented through witnesses and documents. The Petitioner or moving party calls witnesses first and asks them questions. This is called direct examination. The other party can also ask them questions after the direct examination is complete and that is called cross examination. The cross examination must be within the scope of the direct examination which means that new issues can not be raised on cross examination. The last set of questions is a redirect exam where the Petitioner or moving party asks questions within the scope of the cross examination.

Tip: If you wonder why the Petitioner has the opportunity to conduct two examinations, it is because the Petitioner has the burden of proof to the court.

Documents you might enter are e-mails, test messages, medical records and others. You can make a closing argument to summarize your arguments and the evidence and to ask the court for the remedies that you seek. The court will usually make a ruling after the case is presented verbally. However, sometimes the court will want to take more time to review evidence or conduct legal research and will issue a ruling at a later date.

Tip: Plan your direct examination by thinking about what information the court is interested in and drafting your questions in advance. For example, if you are conducting an exam about children, then consider parenting time, decision-making and support questions and the legal standards that govern those areas.

There are two types of judicial officers – a District Court Judge and a Magistrate Judge. Magistrates often handle preliminary matters, such as status conferences, and then the case is transferred to a District Court Judge for the final orders hearing. A final orders hearing is where all unresolved property, support and child-related issues are addressed and resolved by a court. It is possible for a Magistrate to preside over a final orders hearing if the parties consent to it. Magistrates also handle many post-decree cases. A Magistrate is a court employee in contrast to a District Court Judge who is a public official appointed by the Governor.

The good news about a Magistrate order is that you can request a review of the magistrate’s decision in the same court system that issued the order – the District Court. The request for review process is similar to, but simpler and less expensive than, an appeal to the Colorado Court of Appeals. You would request review of the order within 14 days if you were present when the order was issued, or within 21 days if you were not. For an appeal to the Court of Appeals of an order issued by a Judge, you have 42 days to file a Notice of Appeal citing your issues on appeal.

A request for review or appeal is based on an error of fact or law in the decision. The court can not hear new evidence and it is not a second bite at the apple. The district court judge will defer to the magistrate on certain aspects such as a credibility evaluation of the parties, however sometimes magistrate decisions are overturned. You should request and file the hearing transcript for the order that you are asking be reviewed. There is a presumption that if you don’t request and submit the transcript, that the lower court order should be upheld. Without a copy of the transcript, the district court judge's ability to review the case is very limited.

Tip: When you request the transcript, you should reference the specific areas where you believe there is an error of fact or law and state why. If you believe there was an error of law, then you would cite to the applicable law and state why you believe that it was not followed. Keep in mind that there are many areas in family court where Judges have a great deal of discretion.

It is important to know and understand the steps in a domestic relations case and to plan and prepare. Always keep in mind the legal issues and standards that the court will focus on in preparing a case. The good news is that especially for pre-decree cases, the steps are standard and defined. The Case Management Order can be a gold mine for information on the process and timelines. The best approach is the proactive approach.