13 February 2009

Two Little Suggestions For Colorado's Courts

As I've mentioned before, few parts of the court system generate more dissatisfaction in the general public than they way that domestic relations actions are handled.

Much like criminal cases, and unlike most civil cases, the court system has a nearly complete monopoly on domestic relations actions. Only a court can terminate a marriage (other than by death). All parenting time, parental decision making, and child support determinations must be approved by a court or a court authorized designee of a court, once children come within the jurisdiction of a court in a domestic relations.

While Colorado is better than many states at getting an initial divorce resolved relatively promptly, in cases involving children the involvement of the court from time to time to modify parenting time and child support orders, often for a decade or more, is almost inevitable. This is the case even if the parties are perfectly cooperative and upright in their conduct. Incomes change from time to time, and even if the parties stipulate to a change in child support, this can not be accomplished in most cases, without a court filing supported by financial affidavits.

The difficulties posed by this long term litigation is compounded by the fact that many domestic relations actions are handled by parties without lawyers. Post-decree issues are even more likely to be handled without lawyers than initial divorces, because the financial stakes are typically lower.

All this is prologue to my two humble suggestions.

First, the standard "Sworn Financial Statement" form, JDF 1111, asks too much of parties in non-martial and post-decree cases where child support is the only financial issue. This form is mandated in all cases where any financial matters are at issue under Colorado Rule of Civil Procedure 16.2. Non-marital and post-decree cases probably include a majority of the instances in which form JDF 1111 is required.

The six page Sworn Financial Statement form includes four pages of questions about non-extraordinary household expenses, assets and debts. The only reason that non-extraordinary household expenses are relevant in domestic relations actions is that they are one factor, among many, that may be considered when making a maintenance award at the time of a divorce. The only reason that assets and debts are relevant in domestic relations actions is to make an equitable division of assets and debts at the time of a divorce.

In cases where a never married couple adjudicate child support, and in post-decree motions, the only items of financial information that are legally relevant are gross income, and a handful of extraordinary expenses (including maintenance payments and child support payments for other children).

If the judicial branch were to promulgate a two page long form JDF-1111 EZ for cases where the only financial issue is child support, and provide for it by court rule, the paperwork burden on litigants and the court, and the opportunities for error by unrepresented parties, would be greatly reduced with no prejudice to the outcome of the cases. The reduced administrative burden, and greater privacy protection that a shorter form would produce, might also encourage greater voluntary compliance with the rules and reduce resentment towards the court system generally by parties in these cases.

Second, it would be very helpful if Colorado's Judicial Branch promulgated "Colorado Rules of Domestic Relations Procedure."

Currently, the court rules applicable to domestic relations actions are embedded in the more general Colorado Rules of Civil Procedure. But, large swaths of these rules do not apply in domestic relations actions. Moreover, many judicial districts routinely issue "canned" orders in every domestic relations case that modify the language of the rules even further.

Applying general rules of civil procedure works fine when domestic relations litigation is conducted mostly by lawyers who have studied civil procedure in law school. But, when a large share, and often a majority of parties in domestic relations cases are not represented by lawyers, co-mingling domestic relations court rules with irrelevant and sometimes contradictory general civil rules, is simply an invitation to procedural errors which further tangle the court system.

A separate set of domestic relations rules would have substantial overlap and redundancy with general civil rules, but, given the volume of paper that is generated by a typical domestic relations case, this is a minor consideration.

Both of the changes that I propose would do nothing to alter the substantive domestic relations law of the State of Colorado, or the substance of its court rules in domestic relations cases. Indeed, both changes could be accomplished by the Colorado Supreme Court acting unilaterally, without legislative intervention. But, these two very modest administrative adjustments to the way that Colorado courts deal with domestic relations cases would make meaningful improvements in the administration of this dissatisfaction filled area of citizen interaction with the court system.

Colorado has been an innovator in the administration of domestic relations cases. Our system has already made many of the substantive adjustments in court procedure that are necessary by instituting widespread use of case management facilitators in domestic relations cases with unrepresented parties, and by devising procedural rules modified for the needs of domestic relations cases, mostly in Colorado Rule of Civil Procedure 16.2. But, it still has steps to take in making its system more user friendly.


Anonymous said...

The administrative changes you propose would, in my mind, only codify the substantive law that is already [mis]applied in domestic relations cases.

Whereas some lawyers (e.g., Rob't Goodbinder) are on record as saying they find "matrimonial law repugnant," and one of my former law professors called it "the bastard stepchild of law," divorce law (or family dissolution law, as I refer to it) is the bread and butter for many lawyers. Another of my law professors casually referred to procedural due process as inconveniences that are often dispensed with in DR, D&N and probate cases. And she was right.

Indeed, huge swaths of not only the Rules of Civil Procedure but also substantive and procedural due process protections do not apply in domestic relations cases and the state's role of parens patriae is the convenient pretext.

In my experience and in reviewing scores of cases in minutia, the following substantive and procedural due process rights are either non-existent or optional in domestic relations cases in our "innovative" Colorado courts: First Amendment freedoms and protections; the right to confront an accuser; the right to timely notice that is reasonably intended to reach the person over whom a court will exercise jurisdiction; the right to meaningful and effective access to the courts; the right to be heard at a meaningful time and in a meaningful manner; the right to an impartial and fair trier of fact, who determines a case based on the merits and not on extrinsic circumstances; the right of access to ordinary, established adjudicatory procedures (such as discovery); the right to proceed pro se if one's convictions or financial circumstances require it; and the right to post (if not pre)-deprivation procedural due process.

Of course, I realize that my statements here are conclusory, but there's really not sufficient space to expound on any one of them.

Andrew Oh-Willeke said...

Putting procedural rules that don't apply to domestic relations actions (e.g. non-domestic relations filing deadlines, class action rules, counterclaim provisions, simplified civil action procedures, derviative action rules, unincorporated association rules, water court provisions, contested election rules, and court forms for inapplicable kinds of cases like automobile accidents), would enhance, rather than impair, the right of parties to represent themselves.