Getting the Most of Mediation

1. Mediation is a mandatory requirement for everyone going through a divorce or modification of parenting time, child support, or any motion pending before the Court.

1. Be realistic - not every case can be fully resolved in mediation. Use your mediation to agree to what you can agree on as this will free up time for the Court to hear more pressing issues.

2. Don’t posture - the mediator cannot be called to testify in Court and will not be reporting to anyone in your case or the court. So you don’t need to worry what s/he or thinks or feels about each party. That said, mediators in family law cases sometimes have experience and will tell you whether s/he thinks, if there is any chance of you getting what you want in front of the particular judge you have. As with all things, best to be courteous and kind, and do not worry about the mediator’s personal reactions just take what s/he says about your case into consideration realizing that the mediation and information exchanged there is totally confidential and will not be reported to the Court (unless there are serious welfare/safety concerns).

3. Summarize main issues or goals for the mediator briefly and ahead of time - many couples can only afford to do the 2 -hour mandatory mediation. Rather than using the first 45 minutes to brief the mediator on what the case is about, see if you can email him or her ahead of time or submit a short summary of pending issues so that you can hit the ground running.

4. Mediators cannot settle anything without your consent. Mediators are not supposed to force an agreement and if you feel pressured into doing so slow down and think about long-term repercussions of doing so.

5. Get the agreement in writing by the mediator to file it with the Court. In doing so, check and double check what is written down as your mediated agreement. If you’re doing mediation alone think about the language you want included ahead of time. As an attorney, I am biased, but if you have a divorce or family law attorney or plan to retain one, go into mediation with your attorney. Once your mediated agreement is approved by the court, It is final

6. Pick a mediator both sides trust. If you’re not sure or don’t know any mediators the Office of Dispute Resolution will help you find someone who is approved by the court in your particular judicial district.

COA - In re Marriage of Thorstad. Modification of Spousal Maintenance (alimony)

The Colorado Court of Appeals, In Re the Marriage of Thorstad, deals with post-decree spousal maintenance (i.e. alimony) payments and a request to terminate alimony upon husband’s retirement. Ex-husband moved to modify his spousal maintenance due to retirement.; ex-wife opposed.

The starting point is CRS Section 14-10-122 (1), which says a Colorado Court can modify subsequent spousal maintenance (alimony) orders if there is a showing of substantial and continuing circumstances that make the current order unfair.

This appeal concerned CRS Section 14-10-122 (2) which says, a payor spouse whose income is reduced or at an end due to retirement, upon reaching “full retirement age” gets a rebuttable presumption that retirement was in good faith and not for the purpose of reducing income or support (alimony). Full retirement age is defined in CRS Section 14-10-122 (2) (c). The issue in this case was that when the parties entered into their Separation Agreement, CRS Section 14-10-122 (2) (a), (b), and (c) did not yet exist. Nor did their separation agreement reserve jurisdiction for the court to deal with maintenance upon retirement.

The trial court had granted Ex-Husband’s motion to terminate spousal maintenance (alimony) under CRS Section 14-10-114, and Ex-Wife argued, on appeal, that the trial court should have looked at CRS Section 14-10-122. CRS Section 14-10-114 deals with how the trial court initially decides whether to order spousal maintenance.

The Court of Appeals held that the trial court should not have treated Ex-Husband’s presumptive good faith retirement as conclusive, and that it should have also considered whether his retirement and declining health were continuing and substantial changed circumstances such that they made the prior order for spousal maintenance (alimony) unfair. Per the Court of Appeals, the trial court should have looked at the 2001 version of CRS Section 14-10-114 because the newer version applies to petitions filed on or after January 1, 2014. The trial court had failed to evaluate both parties new circumstances (ability to pay and need for alimony) per the 2001 version of the statute. The case was remanded for findings on whether, for Ex-Husband, there had been a substantial and continuing change to his circumstances such that the present order for spousal maintenance is unfair and also to review Wife’s request for attorney’s fee under CRS Section 14-10-119.

Co-parenting Apps

Divorcing parents face new challenges.  Some do this well. They leave the lines of communication open and are genuinely able to separate marital problems from parenting issues so that kids still see both parents as a united front, supporting them. That is where you want to be, and if you're not there yet, you need to get there. But when parents are so hostile to one another that allegations start flying back and forth, it may be a good idea to try out one of the below apps for communication with the other parent in writing.

There is a lot of sound research that says exposing kids to parental conflict is not just bad, it can actually have long-term effects on their brains' hard-wiring.  Kids who have experienced nasty divorces are more likely to have their own problems relating to others, empathizing with them, and may even have higher rates of substance abuse.  So the bottom line is whatever you have to do NOT put your children in the middle, do it.  The apps below are frequently used by divorcing couples who cannot talk to one another civilly in person or who fear the consequences of not putting their discussions in writing. 

These apps also have the ability to share calendars for kids' events and appointments, share treatment providers' info, and share requests for payments for things like extracurricular activities or other out-of-pocket expenses.  They all have the advantage of saving conversations so that there is no undocumented he said/she said, or at least much less of it.  AppClose has a text messaging service that is like regular texting, but if there is any problem documenting was said, texts can be downloaded for the judge, attorneys, or mediator/arbitrator.  Talking Parents is an email-like platform that organizes conversations by topic (AppClose and Our Family Wizard also have this).  Our Family Wizard, I'm told, has a bunch of bells and whistles and is subscription based.  Check out discounts offered for military service members as these can help.  

https://www.talkingparents.com

https://appclose.com

https://www.ourfamilywizard.com

CLR, CFI, or PRE - Experts

When the court makes decisions regarding parental responsibilities (custody), it may rely upon input from an neutral third party expert.  There are various kinds of custody experts in Colorado: the CLR (Child Legal Representative), a CFI (Child Family Investigator), and a PRE (Parental Responsibilities Evaluator); CFIs are less expensive and state pay is available for low income parents, but the CFIs scope is also more limited than that of a PRE, which can be very expensive and which will include mental health testing of both parents. 

The decision to request an expert of some kind depends upon many factors, but if you're legitimately concerned for your children's safety and welfare, you should discuss the option of hiring an expert with your counsel.  Once appointed, experts can have a big impact on the outcome as they report directly to the court their findings and recommendations.  . 

What's a Dissolution ?

 

A divorce in Colorado is called a Dissolution of Marriage.  Colorado is among a handful of states that also permit Legal Separations, which for military spouses are sometimes a good option for a variety of reasons. 

Colorado laws governing dissolution or legal separation are found in The Uniform Dissolution of Marriage Act, 14-10-101 et seq.   Laws pertaining to paternity, child support, and child custody jurisdiction and enforcement of child custody orders are found in 14-13-101 et seq.; Section 14-5-101 et seq. and 19-4-101 et seq.  There are others but these are the most frequently invoked statutes. 

Where parties not hostile or capable of overcoming major animosity, we do collaborative divorce or legal separation and can undertake limited scope representation to help draw up papers for those who have managed to work together and simply need help executing their agreements.  If you need help simply drawing up an agreement, we do not represent either party, and this is something that needs to be understood and agreed to by both spouses.