In Sickness or in Health: Changes in Colorado Divorces as a Result of COVID-19
The COVID-19 pandemic has upended almost every aspect of American life, including state and federal legal systems. In Colorado state courts, there is a backlog of over 14,000 jury trials statewide, including around 10,000 criminal trials. (https://www.thedenverchannel.com/news/local-news/colorado-courts-face-two-crises-a-crisis-of-confidence-and-a-covid-case-backlog)
Despite the fact that Colorado Courts have become somewhat proficient in holding hearings remotely, it may be months or over a year until parties can be heard by a judge to receive final orders, depending on the judicial district in which a case is located. Judges and Magistrates, however, are still approving settlement agreements between parties to a family law case relatively quickly – and Colorado only requires the passage of 91 days from the time a divorce petition is filed before a decree incorporating written settlement agreements can be approved by the court. If parties require judicial involvement in their divorce, a decree will likely not enter until the case is assigned to the courtroom’s backlogged docket.
The presentation of cases and arguments, which were already truncated and subject to strict time limits in many courtrooms, has been altered by the pandemic, with some changes here to stay. Practitioners involved in family legal matters have made significant adjustments from their ordinary practices pre-pandemic. From the initial consultation to a final hearing, almost all major events during the lifetime of a divorce or allocation of parental responsibilities (custody) case are currently being conducted virtually. Colorado Courts has contracted with Cisco to hold virtual hearings via WebEx. Zoom and Skype are also being used by many professionals. While remote hearings have reduced costs for family law litigants in some respects, since attorneys no longer have to travel to and from the courthouse, they have also introduced new problems.
If your case ends up in a virtual hearing, it is critical to familiarize yourself with WebEx before the hearing. Judges are called upon to make important credibility determinations during contested hearings, especially in family law where the incentives of parties to deviate from reality to favor their position is strong. Given the high stakes and emotional upheaval of sensitive aspects of one’s life in a public courtroom, the difficulties involved in presenting evidence and testimony over videoconferencing require even more preparation and practice than conventional in-person trials. Furthermore, virtual hearings tend to go slower than in person hearings. As a result, family law litigants now have even less time to present their cases than they previously had. Given the lack of control and nuance, until society returns to a post-pandemic world, settlement of cases is even more favored to allow parties to move forward with their lives.
Regarding mediation, to encourage settlement, strict confidentiality laws apply to mediation communications. Over time, mediation evolved in Colorado to favor the “shuttle style,” where the mediator switches back and forth between separate rooms where the parties and their respective attorneys are segregated, conveying offers and furthering negotiations and sensitive discussions. The same principle applies in virtual mediation by Zoom or other remote videoconferencing app. Mediators rely on break-out rooms and screen sharing features to conduct an effective mediation. While not as intimate as in-person meetings, virtual mediation can serve to allay anxieties and tension. Parties can choose where they will be during the session, a favorite part of their own home or office, or perhaps with a favorite pet. With permission from the mediator and the other party, individuals can also rely on the presence of trusted friends or advisors to join them at times for support and encouragement.
The pandemic has also radically altered day-to-day childcare and schooling arrangements, often resulting in one parent carrying the weight of the responsibilities when the children are not in school. This reality has introduced additional conflict regarding when, where and how children go to school, if a particular childcare arrangement is safe, whether homeschooling should be considered or is mandated, etc. Creative solutions to an impasse regarding major decisions can be resolved much more quickly through a court-appointed Decision-Maker hired by the parties, arbitration, mediation, “med-arb” involving both mediation and arbitration, or settlement conferences with parties and their attorneys.
The attorneys and staff at Wells Family Law stay abreast of procedural changes affecting our clients, cases and the issues that matter most, including extra-legal considerations. Contact us today for a confidential consultation regarding your situation and how the pandemic may – or may not – affect your family.
Written by Zachary (Zac) Roeling, Senior Associate Attorney