Why is my case taking so long?

            Going through a dissolution of marriage, or divorce can be one of the most stressful events in a person’s life.  Having to wait for orders can make that stress worse.  Judges understand that, and do their best to get your orders out as soon as possible.  In this article, you will see some of the reasons why your case may be taking longer than you think it should.

            First, every single divorce case in the state of Colorado requires that 90 days pass from the beginning of the case until a decree is entered.  This does not mean that you will be divorced on the 90^th day after your divorce is filed, but that it cannot be any sooner than that.  The 90 day waiting period starts the day the case is filed if you file the divorce action as a Co-Petitioner with your spouse, or on the date that your spouse is served, or waives service if not.  This may add some additional time to your waiting period if you are not able to get your spouse served right away.

            Once your waiting period starts, the next step is getting the matter set for hearing.  The type of hearing you set, and the length of hearing factors into how long it takes to have the matter heard by a judge or magistrate.  If you have resolved all of your issues, you may set a non-contested hearing in front of a magistrate, which will get set sooner than a contested matter.  If there are contested matters, the longer the hearing may affect how soon your matter is heard.

            Unfortunately, the number of cases and the amount of time a judge or magistrate is in Court may make it difficult for you to get a hearing date as soon as you would like.  There are also deadlines in certain types of matters, such as criminal cases, or restraining orders that give those types of cases priority over a dissolution case.  This means that those priority cases may be set sooner than your case, or that type of case may cause your case to get continued to a later date.

            If you have filed a specific type of motion in your case, you may be wondering why the judge has not ruled on it.  One factor may be that the response time has not passed.  Most motions require that a waiting period of fifteen days (plus a few extra days for mailing time) pass before a judge or magistrate can even rule on the motion.  This waiting period is to allow the other side to respond.  If a response is filed, a reply time of ten days is also required. 

            Judges and magistrates then have to balance the amount of time they are in court with the review of the motions that are received.  While in Court, the judge or magistrate must be focused on the hearing, and must wait until they are out of court to rule on written motions, which may cause some delay.

            Errors on the motions may also cause a delay.  A common error in a motion is a failure to fill out the “Certificate of Mailing” which certifies that the person who filed the motion has mailed a copy to the other side.  If the certificate of mailing is incomplete, or if the address that the motion as mailed to is not the address the Court has in the file, the motion may not be ruled upon until the Court is satisfied the other person has gotten a copy of the motion.

            Once the hearing is held, judges and magistrates try very hard to rule on your motions that day while you are in court.  This is not always possible.  Reasons for a judge not ruling during your hearing include not having sufficient time to make the ruling before the next matter is scheduled to be heard,  the judge needing to do additional research, or perhaps the judge has not been able to make a final decision on a difficult issue without additional time. 

            Court staff keep track of motions and deadlines and along with the judicial officers work to make sure that your cases move through the system as efficiently as possible.  If your case has not been ruled upon, it may be for any of the reasons stated above.  Each case is very important, and judicial officers recognize this.  If you have questions regarding your specific case, if none of the information above describes your information, you may contact the court directly.  You should understand, however, that court clerks cannot give legal advice, and you cannot talk to the judicial office assigned to your case.  You may also consider contacting a lawyer for further assistance.

Filing Fees and Waiving Fees

A common obstacle to accessing the court or defending an action is the costs associated with legal work.  The most expensive cost is the service of an attorney.  Beyond the attorney's work, there are costs associated with filing paperwork, serving papers on others, witness fees, making copies of papers, and court costs.  This post will discuss some of those costs, and ways in which parties to an action can minimize the cost or have the costs waived.

As stated above, the cost of an attorney is likely the most expensive cost in a case.  To help alleviate this cost, many states and communities provide legal services offices for low-income litigants and certain other qualified individuals.  If charged with a crime in Colorado, the Office of the State Public Defender and the Office of the Alternate Defense can be appointed for persons declared to be indigent.  Both offices have attorneys, investigators, and staff to assist persons accused of misdemeanor and felony offenses.  

For civil cases, Colorado Legal Services has offices around the state to help low income persons.  CLS handles cases involving family law (divorce, custody, child support modification), bankruptcy, victims of domestic violence, protection orders, consumer fraud, creditor-debtor, and landlord-tenant.  CLS attorneys not only handle individual cases--they also conduct training sessions for community members and provide information to the public.  

In Mesa County, the Pro Bono Project provides referrals to local attorneys who will handle cases on a pro bono ("free") basis.  Although there is not a mandatory requirement for attorneys to provide a certain amount of pro bono hours per year, lawyers are encouraged to participate and volunteer their time to help the community, and many Mesa County attorneys have helped low income persons through the Pro Bono Project.

Besides the cost of an attorney, there are costs associated with litigating cases in Court.  The following are some common costs in Colorado:

• Filing a Civil Complaint in County Court: $97
• Filing an Action for Name Change: $100
• Filing for a Civil Protection Order: $97
• Filing an Answer to a Civil Complaint in County Court: $92
• Jury Demand (County Court): $98.  Jury Demand (District Court): $190
• Filing a Civil Complaint in District Court: $224
• Filing an Answer to a Civil Complaint in District Court: $158
• Filing a Petition for Dissolution of Marriage: $230
• Filing a Response to a Petition for Dissolution of Marriage: $116
• Filing a Petition for Allocation of Parental Responsibilities: $222

For a list of all filing fees in Colorado, see the Colorado State Judicial, Filing Fees tab.

Despite the above stated costs, there are procedures available to waive most of these costs for low-income persons.  The fees that can be waived are filing fees, jury demand fees, reasonable copy fees, E-file fees, E-file services fees, and research fees.  If persons who have not been declared indigent, there are procedures available to pay the fees by installment.

For victims of domestic violence filing a civil protection order, the Court waives the filing fees for the victims.

To have the filing fees waived, you must file a motion to file without the payment of fees with the Court, and the Court must grant the motion.  This motion is filed with the clerk's office, and it includes an income sheet that the party must file out.  This sheet will determine if the person's income is below the necessary level for the waiving of fees.  Be prepared to provide evidence of your income and assets, such as disability payment receipts, paystubs, and unemployment benefits receipts.  The motion to waive the fees are available upon request at the clerk's office, or at the Colorado State Judicial website stated above.

Before paying any fees, you should always contact the clerk's office to determine if there is a procedure available for waiving the fees.  As stated above, a motion to waive the fees may be the only step necessary to achieve your goal.  With the waiving of fees, low-income parties can avoid some of the financial burden of the Court and achieve greater access to the legal system.  

Assistance for Victims of Domestic Violence

In addition to providing access to legal services to the public and educating the community, the Pro Bono Project of Mesa County assists the victims of domestic violence.  In Colorado and in the Grand Valley particularly, there are resources and assistance available for these victims.  This post explains victim's rights and the resources available in our area.

In 2002, the Colorado legislature passed the Victim's Right's Amendment. Colo. Const. Art. II, Sec. 16a.  The Victim's Rights Amendment provides victims of crimes (Including domestic violence) the right to be heard and to be present at all critical stages of the criminal justice process.  This includes a victim's right to be heard at a defendant's bond hearing, plea hearing, and sentencing hearing. See C.R.S. 24-4.1-302.5.  To ensure that these rights are extended to victims, the legislature requires the District Attorney's office to consult with victims regarding the reduction of charges, negotiated pleas, and the dismissal of charges. See C.R.S. 24-4.1-303.  

When a victim of domestic violence contacts law enforcement, the officer shall arrest the suspect if the officer has probable cause to believe that a crime involving domestic violence was committed. C.R.S. 18-6-803.6  Upon the arrest of the suspect, the Court will issue a mandatory restraining order, restraining the suspect from harassing, intimidating, or tamping with any witness or victim of the acts charged.  The Court also has the authority to order the suspect to not have any contact with the victim and to stay away from the victim's residence and place of employment.  Upon probable cause, police officers must arrest any restrained person who has violated the restraining order.

The District Attorney's Office for the 21st Judicial District (Mesa County) provides a victim's assistance program, and is available to answer questions and address concerns.  Additionally, the Grand Junction Police Department provides a Victim Advocacy Program to assist victims of crimes, including domestic violence. 

For counseling and shelter services, victims of domestic violence may contact Hilltop's Latimer House.  The Latimer House's crisis hotline can be reached at 970-241-6704. 

Victims of domestic violence may also apply for a civil protection order to keep the offender at bay.  The protection order is filed in the District Court, and the Court can order the offender to refrain from any contact with the victim or the victim's residence or employment.  The Court does not charge a filing fee for victims of domestic violence seeking a protection order. 

Terminating a Lease and Tenant's rights, Landlord-tenant

Too often, tenants fear that landlords will immediately evict them from the premises, change the locks, and remove their property without an opportunity to be heard.  Fortunately, Colorado has created a number of procedures to ensure that a tenant receives the proper notice and time necessary before an eviction can be finalized.   

A landlord may terminate a lease at any time, but must give proper notice prior to the termination of the lease.  The length of the lease (also known as the tenancy) determines the length of notice the landlord must provide to the tenant.  According to C.R.S. 13-40-107, the landlord may terminate the lease in writing, but must serve the written notice as follows:

• A tenancy of one year or longer, three months notice;
• A tenancy of six months or longer but less than a year, one month notice;
• A tenancy of one month or longer but less than six months, ten days notice; 
• A tenancy of one week or longer but less than one month, or a tenancy at will, three days notice;
• A tenancy for less than one week, one day notice.  

The Landlord may also evict a tenant for failing to pay rent or if the tenant committed a substantial violation of the lease, but even in these instances, the Landlord must provide 3 days written notice.  After the written notice, the Landlord must follow the statutory eviction procedures before a tenant may be removed from the property.  

Enforcing court orders in divorce cases: civil contempt

With every divorce, the court orders the parties to do (or refrain from doing) certain things.  For example, courts issue orders regarding the division of property and debts, the payment of child support and maintenance, and parenting plans and parental responsibilities.  Unfortunately, some parties refuse to follow the court's orders, which can cause serious hardship and pain to the opposing side.  To ensure that parties to a divorce follow all court orders, the court uses the procedure of civil contempt. 

In Colorado, Rule 107 of the Colorado Rules of Civil Procedure governs the rules and procedures for civil contempt.  There are two types of contempt: direct and indirect contempt.  Direct contempt consists of behavior that occurs in the presence of the court.  Examples of such behavior include disorderly and disruptive behavior, and boisterous conduct or violent disturbances toward the court.  Most often, direct contempt proceedings are initiated by the court and not by one of the parties in a case. 

The second type of contempt, indirect contempt, occurs outside of the presence of the court.  The most common example of indirect contempt is a party's disobedience or interference with an order of the court, such as a parent's failure to pay child support or the refusal to follow the parenting plan.  In most post-divorce disputes, the party utilizing the contempt rules usually claims that the person is acting in "indirect" contempt.

To begin an indirect contempt action, the initiating party much file a motion and supporting affidavit with the court.  The motion and affidavit include the rule or order that was violated, and the facts showing how the opposing party violated the order.  If there are sufficient facts in the motion and affidavit to show that indirect contempt occurred, the court will issue a citation to the offending party to show cause why the party should not be held in contempt.

Once the citation has been issued, the opposing party has an opportunity to admit or deny the contempt allegations.  Should the party deny the contempt allegations, the court will schedule a hearing to determine if the contempt allegations can be proven.

When a party seeks to hold the opposing party in contempt, the party may ask the court to impose remedial or punitive sanctions  The type of sanctions selected makes a significant difference in the manner in which the contempt proceeding is held.  If the party is asking for remedial sanctions, the party must prove to the court that the offending party (1) did not comply with a lawful order of the court; (2) knew of the order; and (3) has the present ability to comply with the order.  Punitive sanctions, on the other hand, are more criminal in nature, and therefore the moving party must show, beyond a reasonable doubt, that (1) an order of the court exists, (2) the offending party knew of the court order, (3) the offending party had the ability to comply with the order, and (4) the offending party wilfully refused to comply with the order.


For remedial sanctions, the court may order the offending party to correct the improper behavior, or to remedy the errors that were made.  The Court may also order the offending party to pay for the reasonable attorney fees and costs of bringing the contempt action.  For punitive sanctions, the Court may order the offending party to pay a fine or imprisonment (up to six months), but only if the Court finds that the party's conduct was offensive to the authority and dignity of the court. 

Tenant's Rights

The Landlord-Tenant relationship is a common, everyday legal occurrence that most, if not all, persons go through during their adult lives.  Unfortunately, it is often a source of contention and arguments that lead to court battles.  For some tenants, it seems that the landlord has more time, money, and experience to yield his or her power over the tenant.  This does not have to be the case, and Colorado has implemented statutes to protect both landlords and tenants from questionable and illegal practices.

Upon entering a lease agreement, the landlord must turn over possession of the property to the tenant.  Additionally, the tenant has the legal right to quiet enjoyment of the property (the legal term for this right is the "covenant of quiet enjoyment").  This means that, generally speaking, the landlord may not trespass onto the property and may not interfere with the tenant's use of it.  If the landlord violates this right to quiet enjoyment, the landlord may be responsible for any damages caused by the violation.

An important statutory right afforded to the tenant is the Warranty of Habitability (C.R.S. 38-12-503).  The warranty of habitability deals with the questions of repairs and damages to the property, ensuring that the landlord provides a safe and healthy premises for the tenant.  If the Landlord fails to abide by the terms of the warranty, the landlord may be responsible for damages, and it may allow the tenant to legally terminate the lease.  

With an eviction, the tenant still has a number of legal rights.  If a landlord is threatening to evict, the tenant's first step is to review the lease agreement.  In many lease agreements there are steps the landlord must do prior to evicting the tenant, and a failure to follow these steps may protect the tenant from an illegal eviction.
 
If the landlord wishes to terminate the lease, the landlord must provide the proper written notice to the tenant and follow the necessary time-frame for terminating the lease.  By statute, if the landlord seeks to terminate the lease, the landlord must provide a written notice to quit to the tenant (see C.R.S. 13-40-107).  The timing of how much notice must be given prior to the eviction depends upon the length of the tenancy agreement.  For example, if the tenancy agreement was for one year, the landlord must provide three months notice prior to terminating the lease.  If the tenancy agreement was a month-to-month lease, then only 10 days notice is necessary (C.R.S. 13-40-107 spells out the various time-frames).

The landlord may terminate the lease for a failure to pay rent or a substantial violation of the lease, but even in these circumstances, the landlord must give a three day notice.  In the case of failing to pay rent, the tenant has three days to pay the rent (it is called a Demand for Rent or Possession), and for a substantial violation, the tenant has three days to remedy the problem (it is called a Demand for Compliance).

Once notice is given and the time has expired, the Landlord still does not have the right to forcibly remove the tenant from the premises.  At this point, the Landlord must file a summons and complaint to legally evict the tenant.  In Colorado, this process is called a Forcible Entry and Detainer action, found at C.R.S. 13-40-101 et. al.  To begin the action, the Landlord will file a Complaint with the County Court.  Next, the Landlord will prepare a summons, which is a legal document informing the tenant of the time and place of court.  The summons and complaint must be properly served upon the tenant.  For proper service, the landlord must personally serve the tenant, or serve the summons and complaint by posting.  If service is completed by posting, the landlord must post the summons, complaint, and a blank answer form on a conspicuous location of the residence, and mail a copy of all three documents to the tenant's last known address.

Upon filing the complaint, the Court will hold a hearing not less than five days, but no more than 10 days after the summons has been issued.  If the tenant wishes to contest the allegations of the complaint, the tenant may file an answer to the Complaint.  Upon the filing of an answer, the Court will schedule a hearing to determine if the Forcible Entry and Detainer action should be upheld.  It is important to review the landlord's complaint against the tenant because there may be certain aspects of the Complaint that the tenant wishes to contest.  For example, the tenant may disagree with the amount of rent that is due or any alleged damage to the property.  To preserve these issues, the tenant should file an answer and appear in court to defend the case.  

If the Court rules in favor of the landlord, a judgment for possession will enter for the landlord.  Within 48 hours of the judgment, the Court will issue a writ of restitution.  This writ of restitution gives the landlord a legal right to remove the tenant's property from the residence.  The writ of restitution is executed by the Sheriff's Department, and depending upon the jurisdiction, is executed by the Sheriff within 2-3 weeks of the judgment.  It is at this point that the tenant, if the tenant is still living at the residence, will be escorted from the property.

Court and Courtrooms: Protocol and Etiquette

Many people have only seen the inside of a courtroom on television, in the movies, or in a history book.  But if you are a litigant in a civil or criminal case, the courtroom suddenly becomes a real place, with real people, with real outcomes.  Not surprisingly, people who attend court for the first or second time do so with some trepidation and fear.  In fact, attorneys who regularly practice in the courtroom will some times admit that they too share those same fears when they walk through the courthouse doors.  While it is understandable that people come to court with some hesitation, the courthouse is a place to ensure justice for all and to vindicate your rights.  Hopefully this post can help alleviate your concerns and worries.

The first thing to remember is that the Courthouse is a public place.  It is open to the public, and its function is to serve the community.  The staff members at the courthouse recognize this important function, and they treat the community members with respect and courtesy.  If you need helping finding a courtroom or filing a document, ask a staff member, and the staff member can point you in the right direction.

When attending court, it is important to take steps in preparation for your visit.  First, make sure you know the date and time of your hearing.  There are many cases and people involved in the courthouse, and the courthouse follows a set schedule of hearings.  If you appear late for court, you may forfeit your opportunity to present a case or make an argument.  Plan to appear at least 15 minutes before the scheduled court appearance.  Call the court in advance of the hearing to learn of the date and time, review the document (such as the motion, petition, pleading, or summons) that tells you the date and time of court, or go to the Court's website to find the date and time. 

As you prepare for court, make sure that your appearance is appropriate for the courtroom setting.  Although the attorneys will appear in professional suits and attire, you are not required to wear the same professional outfit.  You may, if you wish, wear a suit and tie, or a professional dress, but it is not mandatory.  On the other hand, wearing a t-shirt and shorts likely does not portray the proper respect and dignity the court deserves.  Perhaps the best advice is to wear something that is comfortable to you, but also shows the court that you are serious about the case and wish to be treated with respect.  Wearing a hat in the courtroom is not permitted.

Once in the courtroom, listen for the Judge to call the case and invite you to speak.  Some times people become anxious because they want to tell the Court every thing on their mind, and wish to do so when others are talking.  Please be patient as every person gets an equal opportunity to speak.  Because everything in the court proceeding is recorded, only one person may speak at a time.  After the Judge is finished speaking, one party will have an opportunity to speak, followed by the opposing party.  If the Court needs clarification, the Judge will likely ask follow-up questions and give you a chance to answer.

While in court, treat each opposing side with respect and dignity.  A court appearance is not an opportunity to yell and scream at an angry neighbor or former spouse.  It is a chance to present your case to the Court and to apply legal and equitable principles to each factual scenario.  You will have an opportunity to be heard in a respectful and peaceful manner.  At the end of the case, the Judge will either announce the ruling on the request, or inform the parties that a ruling will be issued in written form in the near future.   

One last reminder: turn your cell phones off when you enter the courtroom.  There is nothing more embarrassing then having a cell phone go off in the middle of a case. 

Modification of Parenting Time (Post-Decree Modification)

Once a divorce is final, people often wonder if the terms or orders of the divorce can ever be modified or changed.  A common example occurs in parenting time.  Children grow up, people move, and changes need to be made to accommodate a child's needs.  This post will describe, briefly, the steps necessary to modify parenting time.

The first step is to determine if modification of the parenting time can occur without the assistance of a court.  If the parties to the divorce agree on a modification, the parties can go forward without the need to ask the court to modify it.  This is perhaps the simplest route to modifying a parenting plan.  Most divorce decrees include a provision about modifying parts of the decree by mutual consent of the parties.  Some decrees also discuss mediation steps prior to go to court. 

A word of caution about modifying the parenting plan by mutual agreement.  Be sure that the modification is by MUTUAL agreement, and not by unilateral self-help.  In other words, a party to the divorce cannot simply modify the parenting time without notifying the other side of his or her intentions.  Self-help modifications without mutual agreement is not allowed, and a Court will not permit this practice.

If the parties cannot agree on a modification, one party may ask the Court to modify the terms of the parenting plan.  This is done by the filing of a Motion to Modify the Parenting Time, pursuant to C.R.S. 14-10-129.  In the motion, the moving party is asking the Court to modify the parenting time.  The must must include the reasons for modifying the parenting time, and most importantly, that the modification of the parenting plan is in the child's best interests.  In fact, the best interests of the children is the guiding principle the Court will focus on when ruling upon a Motion to Modify Parenting Time.

The person filing the Motion with the Court must also serve the opposing side with a copy of the Motion.  Serving the other side can be by personal service (handing the motion to the person), serving the opposing side's attorney, or by mailing it to the opposing side's last known address.  The Court wants to make sure that you have served the opposing side a copy of the Motion, and therefore it is necessary to file a Certificate of Service with the Court verifying that a copy of the Motion was delivered.

As with any motion, the Court will await a response from the opposing side.  After the opposing side responds (or fails to respond), the Court will usually require a hearing on the Motion.  This hearing occurs before a Judge, who will hear evidence to determine if modification of the parenting time is in the child's best interest.  At this hearing you have the opportunity to explain to the Court why it is in the best interest of the child to modify the parenting time.  You may call witnesses, present evidence, and argue your case to the court.  Remember, the opposing side also has an opportunity to be heard, and the opposing side has the right to question your witnesses and present a case.  At the end of the hearing, the Court will either rule on the motion at the bench, or will issue a written order a couple of days after the hearing. 

One final thought about modifications: review C.R.S. 14-10-129 very carefully.  The statute discusses specific steps necessary to modify parenting time, particularly when the modification changes the status of the custodial parent, and when one parent is moving out of state.  Also, subsection 4 of the statute discusses modifications of parenting time when a parent is alleging that the child is in danger of imminent physical or emotional danger due to the parenting time.  In such instance, the Court must hear and rule upon the motion within seven days.

Warranty of Habitability

A common issue handled by pro bono attorneys deals with Landlord-Tenant law.  In Colorado, the Landlord and Tenants owe certain duties and rights to one another.  To protect tenants from scrupulous landlord practices, Colorado has enacted a "Warranty of Habitability".  The warranty imposes certain obligations and rights upon the landlord, and provides remedies if the landlord violates these rights. 

The Warranty of Habitability can be found at C.R.S. 38-12-503.  In every rental agreement, the landlord warrants (or guarantees) that the premises is fit for human habitation.  The landlord breaches this warranty if the residence is uninhabitable or unfit for human habitation, and the condition of the premises is materially dangerous or hazardous to the tenant's life, health, or safety.  Additionally, and very importantly, the landlord will only be in violation of the warranty of habitability if the landlord has received written notice of the condition and has failed to cure the condition within a reasonable time. see C.R.S. 38-12-503(2).  

What constitutes "uninhabitable" for purposes of the Warranty of Habitability is defined by statute, and the premises is deemed "uninhabitable" only if it meets one of these statutory definitions.  The term "Uninhabitable residential premises" can be found at C.R.S. 38-12-505, and the residence must be substantially lacking any one of the following characteristics: 

• Waterproofing and weather protection of roof and exterior walls maintained in good working order, including unbroken windows and doors;
• Plumbing or gas facilities that conformed to applicable law in effect at the time of installation and that are maintained in good working order;
• Running water and reasonable amounts of hot water at all times furnished to appropriate fixtures and connected to a sewage disposal system approved under applicable law;
• Functioning heating facilities that conformed to applicable law at the time of installation and that are maintained in good working order;
• Electrical lighting, with wiring and electrical equipment that conformed to applicable law at the time of installation, maintained in good working order;
• Common areas and areas under the control of the landlord that are kept reasonably clean, sanitary, and free from all accumulations of debris, filth, rubbish, and garbage and that have appropriate extermination in response to the infestation of rodents or vermin; 
• Appropriate extermination in response to the infestation of rodents or vermin throughout a residential premises;
• An adequate number of appropriate exterior receptacles for garbage and rubbish, in good repair;
• Floors, stairways, and railings maintained in good repair;
• Locks on all exterior doors and locks or security devices on windows designed to be opened that are maintained in good working order; or
• Compliance with all applicable building, housing, and health codes, which, if violated, would constitute a condition that is dangerous or hazardous to a tenant's life, health, or safety.