Improving Colorado Divorce Law

Probably no area of Colorado law produces more dissatisfaction with the judicial process than domestic relations law. A large share of active online critics of judges and the courts have had unhappy family law experiences. Litigants in all but the most tame divorces regale friends and family with the agony of the process.

Some of this unhappiness may be the fault of the professionals involved. Some of this may be attributable to the underlying causes of the marriage's demise itself. But, I believe that it is possible to rethink both the substantive law and the judicial process in this area to reduce the harm caused by the divorce process itself to all involved. My identification of the problems and proposed solutions follow.

Problem: Too much discretion

Divorce law gives the judge, sitting in equity, immense discretion.

The aggregate value of property divisions is supposed to be "equitable" rather than equal, and there is essentially no formal guidance on who should get what in particular from the marital assets.

The overriding rule in parental decision making and parenting time rulings is to advance "the best interests of the child," which is only slightly less vacuous than "do the right thing."

Maintenance (i.e. alimony) awards are made with slightly more guidance to judges, but only slightly more. The many factored test provided by statute provides considerable discretion for a judge to determine is maintenance should be awarded or not, and provides little guidance on an appropriate duration or amount of an award.

Also, in the absence of firm guidance, women, who tend to make more economic sacrifices in marriage for the benefit of the family, by foregoing career building to be homemakers and/or care for children, overwhelmingly see their financial fortunes worsen after a divorce, while men generally see their financial fortunes remain little changed or actually improve. Indeed, the desire to give women greater leverage in negotiations over maintenance has been the main factor driving New York State's refusal to adopt "no fault" divorce. Larger maintenance payments would also legitimate the fact that typically, in a family where a mother has spent time as a homemaker, both the mother and her children need financial support from the father. When awards are described only as "child support" father's very frequently complain loudly about and resent the fact that child support money is paid to the mother without any accounting of what is actually used for a "child's expenses" as opposed to the mother's, despite the fact that the law requires no such accounting.

Child support awards are governed by a much more specific formula, which is a product of the income of the parties, the number of children involved, the number of overnights spent with each parent, and certain adjustments for in kind payments or extraordinary expenses. But, the income numbers that go into the formula may be adjusted if a spouse is unemployed or "underemployed," so child support is based not upon what each spouse actually makes, but what each spouse could make if they really tried.

This discretion flows from the fact that historically, divorce was very rare, so there weren't enough cases to establish general rules. Now, they are common place, so judges have to "mass produce" divorces. Moreover, the most important general rules were gender specific and have been thrown out on equal protection grounds, and also on the grounds that they reflected assumptions about how marriages function that are no longer factually accurate.

In contrast, most other kinds of litigation has much more clear standards based upon what has happened in the past, rather than calling upon courts to try to predict the future with vague standards.

Since there is no baseline to measure against, and little in the way of legal standards to govern a judge's discretion, it is little wonder that the personal ideology and alleged biases of judges in domestic relations cases attract so much attention. A domestic relations judge is a super-legislator who makes a new domestic relations law from scratch for each family, rather than an umpire merely applying the rules. Sometimes domestic relations judges act more predictably than the law itself would suggest, but unwritten rules and assumptions are a more powerful force in causing this predictability than the statutes themselves, and parties have no avenue for relief when unwritten rules and assumptions are violated.

Judges aren't the only ones put in a difficult position by the wide discretion afforded judges in domestic relations actions. The fundamental lesson every lawyer learns in law school is that settlement, which is how most cases are resolved, operates in the shadow of what is likely to happen at trial. The less predictable the outcome is at trial, the harder it is for parties and their lawyers to reach consensus on how to settle a case before trial.

Not surprisingly, the domestic relations cases where trial is most predictable -- cases where there are no children and an award of alimony is unlikely because both spouses have established careers, tend to be the least contentious and unhappy, even when the amount of money at stake is very large. In contrast, in almost all other types of litigation, the contentiousness of the parties is strongly related to the amount in controversy.

Solutions

There are several ways that greater certainty could be brought to divorce law, without sacrificing substantive justice.

Maintenance awards could be based upon a formula for determining the amount of the award and its duration that hinges on specific findings of fact about the events that have occurred during the marriage and the current financial situation of the parties. This formula should be more generous that current practice to people entitled to maintenance.

A firm determination of maintenance amounts would also make it easier to merge maintenance awards and property settlements into unequal property distributions that disentangle the parties as soon as possible and also reduce the risk of non-payment, which is a chronic problem.

The use of imputed income in child support awards could be discontinued. It is hard enough to determine what the parties actually earn in many cases, without even beginning to consider what they could earn. Imputing income frequently requires expensive expert testimony. But, the goal of imputation of income, which is to discourage parents from being underemployed, are already served by other parts of the child support formula. Like an income tax, an increase in personal income increases an individual's take home pay more than it increases their child support obligation under the formula, so there is always an economic incentive to earn more money. Also, the opportunity to modify child support upon a change of circumstances under existing law largely eliminates the need for courts to make accurate long term predictions about future earnings.

While it might be counterproductive to specifically require that property divisions be equal, rather than equitable, as this could force appeals over trivial disputes in property division awards, it wouldn't be hard to formally set a limitation on how much of a percentage deviation from equal is permitted.

Finally, some guidance more specific than the "best interests of the child" for parenting time and parental decision making is in order. In practice, several propositions, not always consistent, tend to be applied on a default basis to parenting time determinations.

One is that the status quo tends to be preserved to the extent possible. For example, if prior to the dissolution, mom usually worked late and saw her children mostly on the weekends, she is likely to get lots of weekend parenting time and few midweek overnights. If one or both parents have unusual work schedules, parenting time is frequently tailored to those needs.

Closely related to the status quo principle is that when parents live far apart from each other, a school aged child usually spends summers and many holidays with one parent, and the school year and some shorter holidays with other parent, while, when parents live close together, each parent usually has some parenting time every week. These schedules are also followed by separated couples in "intact" families.

Another is that major decision making tends to be awarded jointly to the parents, unless they are incapable of cooperating, in which case decision making power is usually awarded to the primary caretaker of the child, unless the other parent is clearly more sensible or moderate on the most controversial issues.

Constitutional abolition of the tender years doctrine notwithstanding, primary caretakers of pre-school children, who tend to be mothers, generally receive disproportionate parenting time. Parenting time tends to be allocated fairly evenly between parents of older children in the absence of practical difficulties, or a clear disparity in parenting ability. Parenting times tends to be more flexible and more influenced by the wishes of the child for adolescents.

Formal recognition of these unwritten rules would encourage settlement and reduce resentments aimed at professionals who recommend parenting time in accordance with these principles, while providing greater recourse to parents who genuinely are subjected to the whims of a biased decision maker.

Problem: Finality and Mutual Agreement Are Unrealistic Expectations

As I explain to my clients, in a domestic relations matter involving children, you can end your marriage, but not your relationship with your co-parent. Except in the case of a completely absent or marginally fit father (or much less frequently, a completely absent or marginally fit mother), each parent will have court ordered parenting time and some shared parental decision making duties, at least on minor issues while the child is in each respective parent's care, until adulthood. Since children tend to be born shortly before, or sometime after a couple marries, and most marriages that end in divorce end fairly early in the marriage, this co-parenting relationship often lasts a decade or more.

Children change a lot in a decade. But, it is hardly surprising that couples who can't bear to be married or stay married to each other also have more difficulty than other couples agreeing on parenting issues. Most couples are better at co-parenting alone than they are at a full fledged marital relationship, but that doesn't mean that they are good at it. They typically have enough history with each other to subtly push each other's buttons if they want to do so. Also, most divorced people end up remarrying, which often further complicates co-parenting after the divorce a great deal.

As a result, the finality that applies brutally to other court orders doesn't work in parenting and child support cases. Couples that divorce with young children can expect to see multiple revisions to parenting arrangements until the children grow up, and if parents can't agree those may end up being court ordered changes.

The usual default of joint parental decision making on major issues is also often problematic in practice. Often the status quo that applies in absence of an agreement of the parents is ill defined, and often ex-spouses are not the best at reaching unmediated agreements with each other on parenting issues. If joint decision making is ordered for parents who have trouble agreeing, every life decision poses another potential lawsuit.

In Colorado law, the line between constant relitigation of parenting issues, and complete finality, is drawn using two separate "two year rules" with certain exceptions, one for parental decision making, and one for parenting time, which fail to acknowledge that complications that can arise if intertwined parenting time and parental decision making issues get out of sync with each other under the two year rule. The possibility that litigation can arise from joint decision making in situations in which there is no status quo is barely even acknowledged. Additional elaborate rules apply when a parent makes a major relocation.

Most modern child support orders provide for regular exchanges of information, usually annually or sooner upon a request for modification of child support orders, but usually disclosure rules follow a one size fits all approach that calls for the same disclosures for purposes of child support modification that are required in a full fledged divorce. Yet, many factors considered in a divorce, like the assets and debts of each party, and the ordinary living expenses of each party, are generally irrelevant to child support calculations.

Solutions

The child support information exchange issue is a common issue that impacts almost every divorced couple with minor children, and is fairly easy to address. The court system could simply promulgate a streamlined sworn statement of financial affairs that limits itself to matters pertinent to child support modifications. This simple change could meaningfully reduce litigation costs in many cases.

One alternative to a system that presumes that finality is the rule, and modification of parenting orders is the exception, would be to mimic the approach used by probate courts in guardianship and conservatorship cases, in which periodic reporting and status hearings at which adjustments can be made are the norm. Rather than requiring a showing of an affirmative change of circumstances, all aspects of parental responsibilities would simply be revisited every year or two, unless a stipulated reaffirmation or modification of the plan was sent to the court in advance of a planned status conference.

There should also be, as there is in probate court, provision for summary adjudication of individual decision making deadlocks or court order compliance disputes that cannot be resolved out of court, on a piece meal basis. In contentious cases, courts ought to be granted the power to appoint a non-judicial decision maker without the consent of the parties.

Problems: Courts Are Bad Fact Finders About Parenting and Need For Judicial Assistance Doesn't Track Ability To Pay

Another key reason that domestic relations cases are so problematic for litigants and the court system, is that the courts have a monopoly on granting divorces and resolving disputed parenting issues, but many people can't afford to have lawyers for each party, particularly when there are usually multiple post-decree disputes. But, the court system is not designed well to handle unrepresented parties.

Indigent parties have a right to counsel in criminal cases, and in civil cases, the real stakes in cases where an indigent party is being sued for money damages are often very modest, so a lack of a right to counsel in this fight over money isn't terribly worrisome. If it isn't worth it to the person who faces having to pay the judgment to hire a lawyer to defend a case, maybe the public shouldn't have to do so either.

This analysis makes far less sense when parental responsibilities and restraining orders relevant to personal safety (or freedom if one is defending a request for one) are at stake. Litigating parental responsibilities and restraining orders is just as expensive as litigating a moderate sized personal injury case, a criminal case, or a fairly significant business dispute, and is more expensive than most civil consumer disputes. Taking a parental responsibilities dispute to trial with lawyers can easily cost in excess of $20,000 for each party. And, many people, particularly those who aren't very affluent, are not well qualified to represent themselves in even a bench trial using the rules of evidence and the pre-trial processes associated with civil procedure in a domestic relations case.

There are some funds available for legal aide representation in these cases and there is some pro bono assistance from lawyers available, but the need grossly outstrips the demand. Legal aide is lucky if it has the resources to take on the most contentious cases with children and domestic violence involving the most indigent individuals. As a result, one or both parties in a large percentage of all domestic relations cases involving children are not represented by counsel.

Even with lawyers, a court room is not a particularly good setting for evaluating parenting skills and crafting parental decision making and parenting time orders. Parent child relationships are subtle things, tend to be best evaluated on a holistic basis, and can be hard to communicate in the unnatural environment of a courtroom with adversarial evidence rules designed to handle criminal disputes and personal injury cases tried to juries.

Solutions

Even now, in Colorado, judges lean heavily in their parental responsibilities determinations on the findings of "Child and Family Investigators" (CFIs), who are court appointed experts, generally chosen jointly or if not agreement is reached, by the court, who conduct an inquisitorial investigation of the family by communicating with the parties, watching them in context with the children, and often talking to relatives, neighbors or other people with knowledge of the situation outside a courtroom setting, and the making a report on the facts with a recommendation to the court. While this recommendation is generally not binding, it is generally given great deference in practice because the CFI has the best information and can claim to be a neutral party. Typically, the cost of hiring a CFI is born equally by the parties.

I would suggest that Colorado formally separate the part of the domestic relations process that doesn't directly involve children (i.e. property division and maintenance) from the part that does (i.e. child support and parental responsibilities). The former could be conducted much as it is now, but with more firm guidelines regarding maintenance. The latter, both initially, and in "post-decree" disputes, could be handled by a formally inquisitorial process with CFIs given some basic instructions on child support calculations as the actual judges, and with the parties represented by non-lawyer parenting advocates, who would have a much narrower (and hence less expensive) formal training in their profession which would be limited to parenting and child support calculations, a fairly self-contained part of the law, particularly after it was streamlined to eliminate matters like imputation of income, and complex waiting periods for revisiting different kinds of parenting decisions.

Both the CFIs and the parenting advocates would be provided at state expense in all cases, upon request, on the theory that children's interest should not be given short shrift due to parental indigency. There would also be a right of indigent person to the assistance of a lawyer to both bring and defend a restraining order case, which is a quasi-criminal matter, paralleling public funding of prosecutors and public defenders.

While the parenting professionals in the separate parenting court that I propose, and the legal representation in restraining order cases that I propose would not be free to the state, the cost would not be crushing. Pro se parties indirectly impose a great burden on the court system as it is now, by basically bumbling everything up and requiring a great deal of informal assistance. Allowing a CFI to directly issue parenting orders, and using non-lawyer professionals as advocates in parenting cases would greatly reduce the compensation that must be paid by someone in litigation involving parental responsibilities, while not necessarily sacrificing much expertise because of the specialization involved.

It would also probably be cheaper for the state to have CFIs, parenting advocates, and restraining order lawyers on payroll, just as judges, prosecutors and public defenders are, than it would be to outsource these professionals at private expense as the current system does.

Some people would still hire their own lawyers in parenting cases, particuarly if they were hiring lawyers anyway for the financial side of a divorce. But, in an inquisitorial process, with each party assisted at least by a professionally trained professional, the impact of hiring a lawyer would usually be far less outcome determinative than it is under the current system when a party with a lawyer is pitted against a party representing him or herself, or when two unrepresented people of very unequal bureacratic abilities try to move a case along through the court process.

Also, it would be helpful to separate all rules of civil proceedure that apply in domestic relations cases into a separate set of rules from the ordinary rules of civil procedure within which they are now lodged, because this would help non-lawyer professionals and unrepresented individuals to better understand them.

Summary

Divorce will always be unpleasant. No amount of rewriting the rules can change that. But, by reducing discretion in the substantive law, radically overhauling the process in terms of finality and the adversarial hearing oriented part of the process in the parenting part of cases, and using publicly funded non-lawyer professionals to handling parenting issues in most cases, the system could be less painful for all involved, and also cost less to the parties and the goverment alike, while producing results at least as just as those produced under the current system, and probably more so.