Common Mistakes to Avoid in a Family Law Case

Making a mistake in a divorce, legal separation or allocation of parental responsibilities matter can be frustrating and leave you feeling helpless and confused.

No one expects those not working in the domestic legal field to know the process. Even folks who have been through multiple divorces, legal separations or allocation of parental responsibility matters can get overwhelmed. They may have experienced these cases in different jurisdictions or during different times when the process or Rules may have been updated.

Some mistakes in family law cases are completely fixable. Others can have a more serious effect. Here are some common ones that should be considered if you are trying to navigate a family law matter without an attorney.

Untimely or inappropriate filings

The amount of paperwork that is required to take a family law case from the initial filing to the Decree is staggering. Just to start a family law matter, the Court will require three documents to be filed: Petition, Case Information Sheet and Summons. The final documents that are usually required before the Court will issue a Decree are even more numerous and include documents such as Separation Agreement, Parenting Plan, proposed Support Order, APR Order, Affidavit for Decree without Appearance of the Parties, Sworn Financial Statement, Certificate of Compliance, parenting class certificate and/or a proposed Decree. Outside of these filings, there are countless others including general Motions that parties may tailor to their needs such as a request for a continuance, to restrict a parent's parenting time or to force compliance of a party to disclose necessary financial disclosures. Be sure that you are paying attention to the kind of form that you need and the timing of filing it. Almost every Court form available through their website will have an instructional flowchart to help guide you through the process of filing that particular document.

Missing deadlines/Court appearances

Although most Judges and Magistrates will give some lenience to parties that are unrepresented, the Rules technically state that any pro se (unrepresented) party will be held do the same standard as an attorney. This means that if you don't know the Rules of Evidence and someone is on the witness stand giving hearsay testimony and you don't object, the Judge or Magistrate will not likely nudge you to do so. If you are representing yourself, you are in essence your own attorney and need to be prepared for these situations to the best of your ability. As such, if the Court schedules a Status Conference, hearing or other appearance, it will be your responsibility to attend in any form (online or in-person) that the Court requires. It will be your responsibility to adhere to deadlines set forth for filing certain paperwork to avoid any consequence such as Witness Disclosures, serving discovery requests and filing Responses to Motions filed by the other party or their counsel.

Financial disclosure inaccuracy or dishonesty

It is common for folks to either try to fool the Court or for the other party to be fearful that they will. Some common fears include hiding of assets, attempting to hold out separate property debt as marital or misstating your income. The Court is more than prepared for these circumstances. A lot of folks believe that their former partner is so sneaky and that the Court is so oblivious that the other party will pull the wool over the Court's eyes and get away with their deceptions. Only with extreme exceptions is this ever the case. Judges and Magistrates are attorneys before they are on the bench. They have heard and seen almost everything. Trying to hide an asset, inflate a debt or reporting inaccurate income is something that they are trained to sniff out.

Trying to change your circumstances to be more favorable

Similarly, some folks think that they can outsmart the Court or system by making changes to their lifestyle in order to pay less child or spousal support; be awarded more assets or less debt; or to obtain more parenting time. These might include things like draining the joint bank accounts or moving money around; quitting your job and/or getting a much less paying job; selling assets without the approval of the other party; suddenly taking the children to the doctor when you never have before. The Court does not simply look at the current circumstances of a case and rule on what things look like on paper when the parties are in front of them. Instead, the Court may take into account the history of the parties and their behavior. This is especially true in areas such as income and parenting time. A party quitting their engineering job and getting a job as a fast-food worker so that they don't have as high of a support obligation is no new trickery to the Court.

Becoming fixated on one piece of the puzzle

Sometimes when you have a lot going on, it can be easy to get stuck on one thing that prohibits the overall traction of the case. This may be standing ten toes down on keeping the house when the financial circumstances just do not support that decision. If you don't maintain a semblance of an open mind or flexibility, settlement may be unattainable. Make sure that you are keeping the big picture in mind -- namely the emotional and physical well-being of the parties and the children.

Not adhering to a Court Order

Court Orders are rules, not suggestions. It is my experience that blatantly choosing not to follow a Court Order can have dire consequences and can lead a Judge or Magistrate to feel that you are more or less spitting in the face of their decision. If a Court Order requires that parenting time occur and the reasoning for not adhering to it does not support the Best Interests of the Child, you may find yourself in a quite unfavorable position. If there is a Temporary Injunction not to disrupt the status quo and you unilaterally decide to put the house up for sale, this may not obtain the outcome you are expecting.

Using Court forms/missing details in final settlement

The forms that the Court offers on their website are extremely helpful as a guideline for the baseline of what is needed for most of their forms. But when it comes to the final documents that spell out the division of assets and debts as well as those that outline parenting time, the forms can exclude many of the details that, if not explored in settlement, can bring parties right back into Court to work out. Make sure that you are covering all the bases with regard to these matters. If you and the other party agree to sell the house, that is great, but you will need some details for that action that may not be present in the forms. For example, what happens if there is an impasse with regard to an offer to buy? Who pays the mortgage while the house is on the market? How will funds from the sale be divided? What about modifications or repairs that come up while the house is on the market? Who pays for that and how are they reimbursed?

Spending money on unnecessary items

Some folks will not think twice to pay for things in a family law matter that in the end may be of no consequence. For example, a lot of folks in a divorce may hire Private Investigators to follow the other party around trying to get evidence of infidelities in the marriage or to supervise the other party during their parenting time that is unwarranted. These experts can be extremely expensive and end up not offering much in the way of reimbursement for their information. Other experts can also be quite expensive and their services should be scrutinized for necessity on the outset. These may include experts such as an appraiser (if the parties agree on the value of an asset, an appraisal is not needed), a forensic investigator (in most instances a review of statements from financial institutions or a deposition can do this job), or a Parental Responsibility Evaluator (while these can cost tens of thousands of dollars, a Child and Family Investigator may offer the similar services for a lower price).

Not familiarizing yourself with WebEx

Ever since the COVID-19 pandemic, most Court appearances in Colorado have become remote. The Court uses WebEx for their virtual appearances. If you do not familiarize yourself with the program prior to your remote appearances, you may waste time and irritate the Court. It is important to download the program prior to your appearance as well as becoming familiar with how to mute and unmute yourself; how to share a screen; how to log in or exit the "courtroom;" and other basic functionality of the program.

Consider hiring an attorney

Lastly, I always think it is a good idea for people to have an attorney help guide them through this process if you are fortunate to be able to do so. Whether it is an attorney you hire for traditional representation or unbundled legal services, an attorney can be instrumental in your family law matter. Alternatively, you should definitely utilize the resources of the self-help center of the Court.