A Primer On Pro Bono Family Law Representation, 1117 COBJ, Vol. 46, No. 10 Pg. 20
| Author | TERESA D. LOCKE, J. |
ACCESS TO JUSTICE
TERESA D. LOCKE, J.
The Access to Justice Series explores the access to justice gap in Colorado, discusses strides that have been made in closing this gap, and encourages innovation in this arena.
Family law—those two words often cause well-intentioned attorneys in search of pro bono opportunities to turn tail and run. The most common reason attorneys give for declining a request for pro bono representation in a family law case is "I don't know the first thing about family law." Such resistance is understandable; taking on a case in an unfamiliar area of the law can be daunting. Nevertheless, there are more parties in need of pro bono representation in domestic relations cases than in any other area of the law.[1]
This article seeks to encourage more attorneys to get involved in family law pro bono representation by equipping them with the basic knowledge and skill set necessary to provide competent representation in family law cases. First, it provides a primer on the types of family law cases that most often need pro bono legal assistance and gives guidance on the basics of family law. Second, it discusses resources available to assist pro bono attorneys in learning more about family law and in representing pro se family law litigants. Finally, it suggests practical ways for attorneys to offer their services to families in need of pro bono representation.
Areas of Need
Family law cases can be divided into two broad categories: pre-decree cases and post-decree cases. Pre-decree cases are those where no previous court orders have been issued to resolve the parties' disputes. Post-decree cases are those where a court has already issued orders, but new disputes have arisen that require modification or enforcement of a previous order. Within these two categories, there are many subcategories.
Pre-Decree Cases
The three most common types of pre-decree family law cases are dissolution of marriage or legal separation, allocation of parental responsibilities, and protection orders.
Dissolution of marriage or legal separation. There are two ways to unwind a marriage in Colorado: a dissolution of marriage and a legal separation.2 The procedural aspects of a dissolution and a legal separation are identical. Both actions require the same pleadings, both are initiated in district court, and in both actions, the initiating party is referred to as the petitioner and the other party is referred to as the respondent. In addition, both actions require full financial disclosure by the parties, and both require either:
1.a fully negotiated Separation Agreement (to address all issues related to the division of assets and debts as well as the payment of maintenance, if applicable) and, if there are minor children, a Parenting Plan (to address all issues related to the children, including parenting time, decision-making responsibilities, and child support); or
2. entry of Permanent Orders (a court order resolving all issues) following an evidentiary hearing.
The only practical difference between a dissolution and a legal separation is that following issuance of a Decree of Legal Separation, the parties are still married and therefore are not free to remarry. A Decree of Legal Separation can be converted to a Decree of Dissolution of Marriage at the request of either party, but not for the first 182 days following the initial decree.
Allocation of parental responsibilities.
An allocation of parental responsibilities (APR) action resolves disputes between non-married parents. An APR action may be initiated as a juvenile court action under the Children's Code3 or in district court as a domestic relations case.4 An APR action can also be brought in district court by a non-parent with standing to seek parental-type rights to a child.5 A party to a juvenile case may seek the reimbursement of birthing expenses and child support arrearages,6 while a party to a domestic APR case cannot. Additionally, juvenile actions do not allow electronic filing, but electronic filing is required in domestic cases.
In an APR action, the court will enter orders allocating parenting time and decision-making responsibilities and will enter a child support order. The allocation of parenting time and the allocation of decision-making responsibilities are both governed by the best interest of the child...
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