Family Law & Divorce: Case Resolution
Divorce and custody cases can be resolved one of two ways: settlement or litigation. Settlement requires each party to be in agreement on all issues, and those matters that can not be agreed upon will be decided by the judge. When the parties agree on every issue at the outset of the case an uncontested divorce may be an option, but when the parties do not agree to all issues at the outset of the case there are several opportunities for settlement as the case progresses. Our Fort Collins divorce attorneys settle the majority of their cases and are skilled litigators when it comes to going to trial.
Settlement will require the drafting of a parenting plan and separation agreement, the documents that will contain every detail that needs to be addressed.
Settlement discussions between the attorneys on each side of a case often resolve the issues in dispute. Settlement offers made by attorneys will be precluded from being received by the Court as evidence as to what either party may have been willing to settle for in the past pursuant to the Colorado Rules of Evidence. Negotiations can occur through email and phone calls, but negotiations can also occur through a settlement conference where the parties and their attorneys all gather in the same place to resolve matters.
A third party trained in resolving disputes will attempt to help the parties arrive at agreements to resolve those matters in dispute. Mediators may offer creative suggestions and explore ideas not previously discussed, but the mediator can not give you legal advice. If agreements are reached in mediation the parties may sign a memorandum of understanding that outlines the terms of settlement or your attorney may draft the formal settlement documents.
Mediation is required in every Colorado family law case unless the parties agree on all matters. While each county has their own mediators available through their office of dispute resolutions there are also private mediators who may be more effective in resolving difficult cases.
Early Neutral Assessment (ENA)
ENA is like mediation, but on steroids. The ENA session is conducted by two professionals: an attorney and a custody evaluator. With the assistance of their attorneys, each parent presents their wishes for custody and the reasoning supporting their request. The two professionals will consider what each parent desires as well as the law and their experience before the judicial officers who may decide your case. The two professionals will make a recommendation as to what they think is in the best interest of the children and what would likely be ordered if decided by a judge. If the ENA session is successful then the agreements reached will become an order of the Court.
Custody Evaluation Report and Recommendation
Either parent may ask the Court to appoint either a Child and Family Investigator or Parental Responsibilities Evaluator to make recommendations as to parenting time that is in the children’s best interests. When the recommendations and report are completed each parent should reassess their positions in relation to settlement and their chances for a favorable outcome should they proceed to trial. If mediation has not yet occurred it should be scheduled in the event negotiations do not resolve the issues.
Arbitration is a substitute for using a public judge. The arbitrator can be appointed to decide all divorce and custody related matters if all parties are in agreement to use an arbitrator. The arbitrator should apply Colorado law the same as judge would, but the arbitrator may agree to apply rules that deviate from Colorado law if the parties so wish. For celebrities and politicians the private nature of arbitration may be appealing. A private divorce may be an option for you if you want to keep your divorce out of the public eye.
When full agreements can not be reached then a judge will have to decide those matters in dispute. The Judge will base their decision on Colorado law and the evidence presented. Evidence presented will be in the form of testimony from the parties and their witnesses. Evidence may also be presented in the form of exhibits. The judge will decide all matters that have not been agreed upon when issuing a permanent order. Some orders may be modified, but issues such as property division are final.