Divorced From Reality
Cyndee Struyk expected her divorce to be final in three months. Instead, it took almost ten. The divorce was also supposed to be a mannerly proceeding in which she and her husband of seventeen years would meet before a magistrate in an informal setting, where they would freely exchange information about their assets and politely discuss any child-custody arrangements.
As it turned out, the divorce was far from civil -- or even simple.
"In the beginning we tried to talk to each other and work things out, but it was very adversarial," Cyndee says. "We had at least three status conferences with the magistrate, and every time we'd get close to agreeing, something would happen and things would stall."
The Struyks had been assigned to "simplified dissolution," a new process intended to take some of the animosity out of divorce by keeping the proceedings out of the courtroom. When Cyndee filed for divorce on June 6, 2001, Arapahoe County was in the midst of a pilot project in which half of the divorce cases were randomly selected for simplified dissolution and the other half handled in the traditional courtroom setting. (Arapahoe County averages about 3,000 domestic-relations cases a year, which include divorces, legal separations, and cases in which parental reponsibility is allocated.)
The idea for the pilot project, which was taking place in Denver and El Paso counties at the same time, had come from a Colorado Supreme Court committee formed in 1998. The committee members, who wanted to improve the divorce process, had studied a program in Minnesota called Divorce With Dignity, and decided in January 2000 to try a variation of the program here.
"Simplified dissolution has some magic to it, in that the parties are started out in a system where positive things are emphasized and they can see a judge right away," says Denise Mills, a family-law attorney in Colorado. "If you can surround a divorce case with a positive atmosphere where the judge says, 'We'll try to do this in as dignified and humane a way as possible,' it can really set the tone."
In simplified-dissolution cases, couples are supposed to meet with a judge or court magistrate -- usually in the judicial officer's chambers -- 30 to 45 days after they file for divorce. At that first meeting, the judicial officer explains the rules: Husband and wife can each have an attorney, but neither can file motions without permission from the judge or magistrate; in subsequent meetings, the spouses are supposed to disclose all financial information (formal requests for documents are prohibited unless the judge orders otherwise); when couples disagree on something, such as the value of their house or a retirement account, they are allowed to choose only one expert, such as a real estate appraiser or accountant, to intervene.
The theory is that by avoiding traditional hearings, with their formal discovery and expert-witness testimony, divorce cases end faster and therefore cost less. (A state law intended to protect couples from making rash decisions mandates that no divorce in Colorado can be finalized until at least ninety days after filing.)
"Attorneys refer to this as the 'rocket docket,' but it's not; it's just earlier intervention," says Pam Gagel, a former Denver District Court magistrate who has been helping judges across the state implement simplified dissolution. "Judges meet with the parties earlier in the process and tell them what they need to get done so that if they want the divorce to be finalized on that 91st day, they can."
Before Cyndee Struyk filed for divorce, she had never heard of simplified dissolution. Her attorney told her that with this fast-track process, the proceedings would likely be complete by the end of the three-month waiting period. But the case dragged on and on, Cyndee says, because her husband "would never settle on anything. He'd always come up with one more thing.
"He wanted the kids half-time, and if I didn't agree, he said he'd fight," she continues. "My attorney said that if he did that, I should prepare myself for another year. I finally gave in, because I knew he wasn't going to give up. I couldn't afford to fight for another year when my attorney charges $250 an hour."
Tom Struyk declined to comment for this story. His attorney, Gina Weitzenkorn, acknowledges that the couple disagreed about parenting time, but she says that wasn't what stretched out the proceedings. "One of the reasons the case took so long was because of some of the complicated forms that had to be prepared to figure out the assets," Weitzenkorn explains. "Even if this case had taken ten months -- and I don't think it did -- it would have taken twenty before simplified dissolution." According to Weitzenkorn, the case was essentially settled that December, although the divorce wasn't final until March 2002.
An early comparison of the pilot and control cases in all three counties certainly indicated that simplified-dissolution divorces were concluding faster than traditional cases. "It seems that much of this can be attributed to early identification of cases that do not require court attention beyond simply ensuring that paperwork and timelines are met, thus preventing cases from becoming 'lost' and freeing judge time for... those cases that do require oversight and assistance," states a February 2001 report on the project.
Gagel, who researched the time it took to complete divorce cases in Arapahoe County the year before and the year after simplified dissolution was introduced, found that 25 percent more cases were concluded after the pilot program began. "I've had people say to me, 'This is so much better than I thought it would be,'" she says. "They always know a date [for another status conference] is set before they leave. I think on the whole, people feel like the courts are providing the public service they feel they should get."
Word of this new way of handling divorces quickly spread to judges across the state -- judges with full dockets who wanted to see an end to lengthy divorce proceedings and who also wanted to introduce some civility to the process. Simplified dissolution is now being practiced in half of the state's 22 judicial districts. No longer considered a pilot program in Denver, Arapahoe and El Paso counties, simplified dissolution is currently standard practice in those jurisdictions.
"The biggest benefit simplified dissolution provides is that the parties and counsel have easy access to the court on an interim basis," Mills says. "In counties where there is not simplified dissolution and you need to file a motion to compel someone to produce documents, your motion can sit there for weeks and weeks, and your case can't go forward because you need those documents. If that happened in a county with simplified dissolution, I would call the court clerk and indicate that we have a problem and request a status conference with the judge, and that would happen within a very reasonable period of time. And the issue would usually get resolved in ten minutes over the phone."
Still, judges and attorneys recognize that even with simplified dissolution, divorce is an ugly process far too often in this state. And for the past eighteen months, another judicial committee has been looking at ways to make the court system more family-friendly. The undertaking was the brainchild of Colorado Supreme Court Chief Justice Mary Mullarkey, who decided that family law was an area of the courts that needed improving -- and soon.
More than 50 percent of all new district court cases filed in this state involve families, and divorce accounts for 30 percent of those. That's not a recent trend; back in 1982, 55 percent of all new district court cases involved families, and in 1972, 61 percent involved families. (During those years, the number of divorce filings remained fairly steady.) What's more alarming is that the number of new district court filings has risen by 50 percent since 1972 -- and the courts haven't grown along with their caseloads.
"We've had a remarkable doubling of filings in the last thirty years, primarily as a function of population growth, but what have the General Assembly and the judicial branch been doing to keep pace with that?" asks Resa Gilats, management analyst for the State Court Administrator's Office. "It's about time that the way we do business in the courts better serves families."
In January 2001, Mullarkey created the Commission on Families in the Colorado Courts, a group of 33 judges, attorneys, lawmakers, child advocates and human services officials whose members include Colorado Attorney General Ken Salazar, Denver District Attorney Bill Ritter, former Denver district attorney Norm Early, former state senator Dottie Wham, and Colorado Supreme Court Justice Rebecca Love Kourlis.
"Most people come into contact with the court system in one of two ways: through jury duty or through a family case, such as divorce or domestic violence," says Kourlis. "The biggest and most important piece of all of this is that we have to elevate family cases to a level that is commensurate with the importance of these cases to the families themselves."
Commission members met several times over the last eighteen months and traveled the state for nine public hearings, where they got an earful about how the courts have been failing families. Their efforts will culminate late this month with the release of 79 recommendations about how to improve Colorado's courts.
Those recommendations, which will soon go to the Colorado Supreme Court and the Colorado Legislature, hold a lot of promise. The commission wants to make the court system less adversarial for parents whose children are in juvenile court, those who are parties to domestic disputes, and families involved in dependency-and-neglect cases.
Whether the commission can do anything to make divorce less adversarial is still a matter of debate.
Cyndee Struyk had been a stay-at-home mom for fourteen years, working only part-time here and there, and at 38, the idea of restarting her career was frightening. But once she realized her marriage was unsalvageable, she began getting ready.
Cyndee already had a master's degree in business administration and had worked many years before as a stockbroker at Charles Schwab. As her marriage neared the end, she took a position at a financial planning firm, where she became licensed to sell insurance.
Four months after she filed for divorce, Cyndee started working as a financial advisor on disability, retirement and life- and health-insurance plans for individuals and businesses. Even though she was working full-time, she was paid on commission. The magistrate assigned to their simplified-dissolution divorce had awarded Cyndee maintenance for four years, but she worried that it wasn't enough time to get back on her feet after more than a decade out of the workforce. "What she didn't take into account was that my husband had 25 years to get his career going," Cyndee says. "At one of the status conferences, the magistrate told me that maybe I should get a second job. I lost it in that meeting and started bawling."
Tom Struyk's attorney says that never happened. "Cyndee agreed to the maintenance for four years; the magistrate never determined that," Gina Weitzenkorn says. Nor did the magistrate tell Cyndee to get another job. "She wasn't even working," Weitzenkorn adds. "Cyndee thought my client should get a second job to pay the bills, and the magistrate said that wasn't appropriate."
According to Cyndee, the case ran into more problems when the expert she and Tom had hired to analyze his retirement account came up with a value that seemed too low. Cyndee consulted another accountant, who decided it was worth almost triple what the first expert had determined. Because couples in simplified-dissolution cases can hire only one expert for each disputed issue, Cyndee says she would have been "up a creek" had she tried to formally introduce the second accountant's opinion. Instead, she and her husband settled on a figure closer to the second estimate outside of the magistrate's presence.
But compared with the Leland divorce, the Struyks's dissolution was simple.
La Plata County didn't offer simplified dissolution when Leisa Leland filed for divorce three years ago. But it wouldn't have mattered. "My situation was too extreme," Leisa says. "Simplified dissolution requires some modicum of cooperation, and there was none in my case."
Yet she wasn't pleased with the traditional court system, either. Early in the divorce, she asked for a hearing in order to secure temporary child support for her daughter; because she suspected that her husband was hiding some of his assets, she knew she would need to prove it before her request was granted. So she hired a private investigator, but it took him a year and a half to gather all of the evidence. Although her husband had claimed on his financial affidavit that he was living on disability payments of only $400 a week, Leisa's private investigator discovered that he'd managed to pay $70,000 in cash for a Porsche, make a $15,000 down payment on a boat and put $10,000 down on a Land Cruiser.
"That's all true," admits Bill Leland. "But that wasn't marital money; that was money I earned after we separated."
That didn't matter to the judge. When he learned of Bill's purchases, the judge punished him by awarding Leisa maintenance, even though she hadn't asked for it. Yet that wasn't enough for Leisa. "I would have liked to have seen harsher penalties, like jail time," she says.
Last summer, the Lelands had a three-day hearing to determine how their assets would be split. "All I wanted was fifty-fifty," Leisa remembers.
Because the judge's docket was so full, he didn't render a decision until seven months later -- when he wound up awarding Leisa 66 percent of the assets. It was good news, she says, but the wait was agonizing. "You're in complete limbo during that time, not knowing if you'll have your house or what," she recalls. "Your life is on hold because of the judge."
Bill says his ex-wife actually came away with more than 66 percent: Leisa got the house, which Bill's appraiser valued at $565,000, as well as an apartment building. (They're both in the real estate business.). "I only got half a hangar in Durango worth $30,000 and a $70,000 lot in California," he adds -- and those were just some of the decisions that didn't fall in his favor.
The Lelands owned a vacant lot at the Animas Airpark, for which Bill had stopped making payments. "I had done that inadvertently when I moved," he explains. To avoid foreclosure, Bill sent the bank $8,500 to reinstate the loan and resumed making payments. When another property went into foreclosure - a hangar at the Durango/La Plata County Airport -- Bill borrowed $68,000 from his mother while he waited for a bank loan to come through. But when the judge came back with the divorce decree in February, Bill says, "I got my ass kicked."
The judge allowed Leisa to broker the sale of the vacant lot as well as keep the proceeds. "I didn't even get my $8,500 back," Bill says. The judge also ordered that the hangar be sold and determined that Leisa should pocket a large percentage of the sale price.
In April, Bill filed an appeal -- as Leisa suspected he would. "To avoid going through another five years of this," she explains, "I offered to waive the attorney's fees of $42,000 that he was supposed to pay and I agreed to waive the child-support payments he was supposed to have been making, but he rejected that."
But in May, Bill decided to accept Leisa's offer on the condition that she pay for half of their daughter's travel costs when she visits him in Arizona, where he now lives. "I rejected that, and at the time, he agreed to drop that part," Leisa says.
In fact, he dropped his appeal entirely, because he doubted he'd get a fair shake. But he hasn't dropped the idea of Leisa paying half of his daughter's travel expenses, a request that "is standard and customary, according to my attorney," he says. Next month he's taking Leisa to court on the matter.
Despite their feuding, the Lelands agree on one thing: The judge's treatment of them was the worst part of the divorce. Although Leisa felt his rulings were reasonable, she says the amount of time he took to issue his final decision was unacceptable.
"If you're in private business and you're over-committed with your time, you make adjustments; the same should happen in government," she says. "It's unreasonable to wait seven months on top of the two years I'd already been waiting. These divorces don't affect the judges, so they don't think about the human aspects of the case. If judges were more sensitive, people wouldn't have to go through all of this."
"What's unfair about it is that the judge doesn't have anyone to answer to," Bill adds. "The judge has the ability to make whatever decision he wants, and he's literally the last word."
Leisa and Cyndee both say that a court facilitator or special advocate -- an impartial person who would have overseen their cases and acted as a liaison between the parties and the judicial officer -- would have helped. But if they'd had a more compassionate judge or magistrate to begin with, they add, an advocate wouldn't have been necessary.
"Divorce is bound to be adversarial, but it takes someone who's not callous to make it less adversarial," Cyndee says. "All I wanted was to be heard."
At their public hearings, commission members heard so many complaints about unsympathetic judicial officers that they decided to do something about it. The criticism wasn't aimed at just divorce-court judges, but at judges presiding over all kinds of family-related cases.
As a result, more than a third of the commission's report, which is still being finalized, will deal with the role, selection, evaluation and training of judges and magistrates.
Although instances of good bench etiquette probably outweigh bad, "the feedback has been significant enough to prompt a close review of the selection and evaluation elements within the judicial system," the report states.
"While some reports have been stated generally as judicial-officer 'horror stories,' others have been very specific examples of judicial officers not treating people in the courtroom with civility, or of judges literally falling asleep on the bench."
"Even though family issues make up more than 50 percent of all the work our courts do, families get short shrift," says Bill Hunnicutt, a family-law attorney and commission member. "There's this perception out there that family cases aren't as important because they aren't as high-profile. Criminal cases, big deal; business litigation, big deal; a huge personal-injury suit, big deal. But family law? Not a big deal.
"Some judges don't want to deal with family issues because they're emotionally draining and complex," he adds. "So a lot of our recommendations have to do with how we can improve family law in the eyes of the public and make it more important to our judges."
In order to do so, commission members hope to provide judges with more training on family legal matters; they also want to reward family-law judges and magistrates who are doing well and reassign those who are burned out.
The commission is suggesting that stringent screening criteria be applied to incoming judicial officers who wish to hear family cases, and that more thorough evaluations be conducted for existing judges and magistrates. Judges should possess "empathy, good common sense, patience, an ability not to 'talk down' nor 'talk above' the heads of the parties," its members say.
They want to "develop a system of lay (and perhaps peer) volunteers with some knowledge and appreciation of family law to randomly 'sit in' on family-law proceedings and offer observations regarding the judicial officer's performance," according to the report. And they're recommending that judges and magistrates who are assigned to hear family cases remain in their positions for at least two years before rotating to a different court.
Some commission recommendations deal specifically with simplified dissolution, which many divorce attorneys have criticized because they feel that due-process rights are often sacrificed for the sake of efficiency. "Sometimes lawyers want to be able to hire an extra expert or to take a deposition when they think the husband or wife is lying, cheating or stealing," Hunnicutt says. When he has a simplified-dissolution case, he adds, "The first thing I ask the judge is if he'll hold us to one expert. So far that hasn't happened, but I've instructed my firm that if a judge does hold us to one expert, we opt out."
Other attorneys applaud the divorce-court reform, however. "I was a special advocate in two simplified-dissolution cases, and in both of those, the parties were able to reach agreement," says Jeff Koy, a guardian ad litem who represents children in all kinds of court cases. "Simplified dissolution does limit what the parties could traditionally do, but from the kids' side, it works in their favor because it doesn't allow the negativity to build between parents. The quicker it's taken care of, the better it is for kids."
Divorce attorney Dave Heckenbach considers himself a big fan of the new process but says the method used to handle a divorce case -- be it simplified dissolution, mediation or court -- doesn't have much bearing on the outcome or on how adversarial the case becomes. "Either people will settle their divorces, or the emotions and circumstances will be such that they'll have to litigate," he says. "I'm not sure the process really cuts down on the amount of litigation that occurs; simplified dissolution just gives people a greater chance to settle earlier on.
"If no one's hiding assets, simplified dissolution works just fine," Heckenbach continues. "And the judge lets you opt out if you want."
At least in theory. After receiving complaints about the simplified-dissolution process, Chief Justice Mullarkey issued an order that jurisdictions must allow couples to bow out of simplified dissolution if they wish to have their cases heard in a traditional courtroom instead. But that doesn't mean all judges are following that order. "I haven't heard of anyone being granted the ability to opt out," says Diane Carlton, president of the American Academy of Matrimonial Lawyers' Colorado chapter.
Since attorneys have also complained that simplified dissolution is handled in different ways in different counties, the commission wants to bring uniformity to the process, ensuring that all jurisdictions are following the same guidelines and offering the opt-out choice.
The Struyks weren't offered that choice. Had the option been presented, Cyndee thinks she would have opted out of simplified dissolution. "I don't think the traditional way would have cost me any more," she says, adding that she spent $15,000 on her divorce.
And despite early evidence of speedier conclusions, Carlton says simplified dissolution is now running into the same problems that have long plagued the traditional court system: too many cases and too few judges to handle them. "It still takes months to get before a judge," she says. "People are not getting that first meeting with the judge in 30 to 45 days."
Carlton likes the concept of simplified dissolution but says the courts need to be adequately staffed to make the program work. "I had one of the very first cases when simplified dissolution was piloted in Arapahoe County, and I think it worked very well then. The program did everything it was supposed to: The judge kept track of us, and there were disputes between counsel that got resolved quickly," she says. "If the program was operating the way it was intended to, it could be very helpful, but as it's developed, it's been a disaster."
Commission members are recommending that independent evaluations be conducted to determine exactly how simplified dissolution is working; they're also proposing that court staffing be increased to better serve families. But it will be up to the state legislature to provide extra money to jurisdictions.
Hunnicutt is confident that the commission's recommendations will solve most of the problems connected with simplified dissolution. One proposal would allow formal discovery as long as the judge permits it; another would allow parties to request more than one expert per disputed issue.
Taken together, the commission's recommendations have the potential to transform the court experience for parents and children, Hunnicutt says. "There have been many efforts over the last twenty years -- different commissions and committees -- to improve the lot of families in court, and everything has always been put on a shelf," he explains. "But this commission has some people who really want to get something done this time."
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