Legal Innovation and the Quest for Equitable Family Law Practices in Colorado | Episode 186

Did you know that 75% of domestic relations cases see parties without legal representation? Today, Ryan and Amy’s discussion sheds light on how this pro se crisis congests the judicial system, leaving dockets strained and resources stretched thin. But it's not all doom and gloom—we bring you hope in the form of solutions like the introduction of licensed legal paraprofessionals, aiming to bridge the gap in legal aid.

They discuss other issues at hand in the family law field in Colorado, like  mandatory pro bono work and rules that govern family law proceedings. They look to Arizona's family law code as a beacon of hope for Colorado's system.

Ryan and Amy also discuss the current strains on court-appointed evaluators like CFIs and PREs. To cap it off, they speculate on how technology is reshaping dispute resolution, sparking a dialogue on the potential for algorithm-driven settlements.

What is Divorce at Altitude?

Ryan Kalamaya and Amy Goscha provide tips and recommendations on issues related to divorce, separation, and co-parenting in Colorado. Ryan and Amy are the founding partners of an innovative and ambitious law firm, Kalamaya | Goscha, that pushes the boundaries to discover new frontiers in family law, personal injuries, and criminal defense in Colorado.

To subscribe to Divorce at Altitude, click here and select your favorite podcast player. To subscribe to Kalamaya | Goscha's YouTube channel where many of the episodes will be posted as videos, click here. If you have additional questions or would like to speak to one of our attorneys, give us a call at 970-429-5784 or email us at info@kalamaya.law.

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DISCLAIMER: THE COMMENTARY AND OPINIONS ON THIS PODCAST IS FOR ENTERTAINMENT AND INFORMATIONAL PURPOSES AND NOT FOR THE PURPOSE OF PROVIDING LEGAL ADVICE. CONTACT AN ATTORNEY IN YOUR STATE OR AREA TO OBTAIN LEGAL ADVICE ON ANY OF THESE ISSUES.

Transcript

Ryan Kalamaya: 0:03

Hey everyone. I'm Ryan Kalamaya.

Amy Goshca: 0:05

And I'm Amy Goscha.

Ryan Kalamaya: 0:07

Welcome to the Divorce at Altittude, a podcast on Colorado family law.

Amy Goshca: 0:12

Divorce is not easy. It really sucks. Trust me, I know. Besides being an experienced Divorce attorney, I'm also a Divorce client.

Ryan Kalamaya: 0:20

Whether you or someone considering Divorce or a fellow family law attorney, listen in for weekly tips and insight into topics related to Divorce co-parenting. And separation in Colorado. Welcome back to another episode of Divorce at Altitude. This is Ryan Kalamaya, and I am joined by my co host, Amy Goscha. Amy, what are we talking about today?

Amy Goscha: 0:46

We are talking about a very exciting topic, about change in domestic relations cases in Colorado.

Ryan Kalamaya: 0:53

DAvid Bowie. I won't even try to sing changes, but change is inevitable. It's part of what we do. Our firm is based on the notion of helping people through change and transition but we've also are experiencing a ton of change in the legal industry and specifically domestic relations. What's the first thing we're going to talk about, Amy?

Amy Goscha: 1:17

Yeah, so I mean, to set the baseline for everyone what's so interesting in Colorado, and I think this is probably nationwide, we have The courts are taxed, as attorneys, Ryan, you and I are always like, when can we get a hearing? I know it's different, like up in the mountains versus Denver or, the front range, but judges are taxed. It's hard to get time. And so we look at, we started looking at, and we've looked at this for a long time, but what is the underlying issue? And in Colorado, what the underlying issue is that, and this has been a statistic in Colorado for more than 10 years. Essentially 75 percent of people that go to court dealing with family law issues, they don't have an attorney. They're not represented by an attorney. And that statistic is still true. In 2023, there's 75 percent of parties and domestic relations cases are going to court without an attorney. And so what's happening in court is judges are having to explain to them, here's the form that you need to fill out. Here's the, sworn financial statement and it's really bogging down the courts and things are not getting done. So it's just 1 of those things where what do we do with this? How do we resolve people's cases? So the things that should be resolved, not taking court time when you have these high asset cases. Nuanced issues, that we can clear the dockets so there's time for judges to really address, those issues. And I know that Ryan in a lot of our cases, people will hire private judges or arbitrators, but not everyone can do that. So that's the issue is we are seeing a pro se crisis. Still in Colorado.

Ryan Kalamaya: 2:56

Yeah. And we are going to talk about some of the solutions. I mean, one goal of this podcast is to provide zero cost resource for people to understand the various concepts. Because, frequently we, as people have listened and have picked up on, we typically deal with high asset, complex. Cases and not we recognize not everyone can afford very few people can afford, someone, like us and that is part of the, I mean, it's not part of the problem, but there is a huge community or portion of the community that really needs help. It's not. It's not just limited to Colorado. This is a nationwide issue, and judges, they come up to us and they, frequently thank domestic relations attorneys for the work that they do. And that's because most cases that domestic relations attorneys are involved with And I had a an episode with Shea Drifts with Custody Exchange and they had done their work. Custody Exchange is a software program that deals with custody parenting plans and whatnot. And they had done a study about, how often people went to court. Cause I mean, Amy, Eric and Melanie Wolf, when they meet with us, regardless of, if it's Eric or Melanie, they're not coming to us and saying, I really want to go to trial. People don't want to end up in court when they start a divorce, but the people that, are there in trial when they're 75 percent of them are unrepresented, a lot of judges, the feedback is these people come and they don't realize that sucking up An entire day talking about pots and pans is not the best use of the resources of our judicial system. And so we as divorce lawyers can really guide people on what are the battles or what are the disputes? Worth, fighting for, but Amy, another part of the solution are the LLPs and you've had various other podcast episodes on this. So for listeners, they don't know. Can you tell a little a bit about LLPs and why that is part of the solution? Right.

Amy Goscha: 5:07

Yeah, that's something that is coming, to fruition here in Colorado. It's a licensed legal paraprofessional and it's essentially a person who will obtain a limited license to practice law in family law cases in Colorado. Colorado is the fifth state in the U. S. to have this type of a program. We're joined by Arizona, Minnesota, Oregon, and Utah. And it's really exciting because The LLPs, the ones, they have to sit for the equivalent of a bar exam. It's called the LLP exam. They'll be doing that in April and then the first round of LLPs will be licensed and they'll actually do the ceremony at the Colorado Supreme Court in June. So we'll be seeing these people out there in the courts, but also to help people. And so essentially they can do certain things and help like this pro se group who might not need to hire someone like Ryan, you and I, who, who charged an hourly rate that might be. Higher than what, they can afford. So yeah, it's really, it's very exciting.

Ryan Kalamaya: 6:18

Yeah. Amy, do you think for listeners that, might be able to grasp onto this, do you think a fair analogy is like a nurse practitioner so that if someone goes, they go to the doctor's office and they are like the doctor, listen you, it's two weeks out before you get, an appointment on a cold. And obviously it's gonna be a lot longer and we'll talk about some of the deadlines and timing issues in domestic relations courts. But, if you have a cold or, something that is, within prediction, like a flu or something like that, you're going to be more likely to go to a nurse practitioner in a doctor's office, get that professional help. But if you have cancer. If you have a broken bone you require surgery, you're moving on up to the doctor and the specialist and in that realm.

Amy Goscha: 7:04

Yes. That's exactly what I would equate it to a nurse practitioner, a physician assistant. Like it's definitely going to be this person who has the place within the legal framework. Who can provide certain services and what's really great is that the Colorado Supreme Court has been very supportive of this program and is actually a lot, is allowing LLPs to do more than we had even contemplated in the beginning. For instance initially we contemplated that they could sit at counsel table more as like emotional support. Now, this LLP can answer questions from the court. They can't cross examine witnesses. I mean, they can't cross examine experts, but they're able to talk in court which I think is a huge help for people who are, like scared or, feel inhibited when they walk into

Ryan Kalamaya: 7:53

a courtroom. And I think for, to take a step back, if we look at some of the other rule changes, there have been, for example, there was a rule change that allowed what was called, is now called limited scope scope representation, and that is that an attorney could advise a client on is this separation agreement fair based on just a limited information. And do they, because lawyers, we inherently are risk averse and we are always worried about getting sued. And so there was this idea by, especially, before the rule change was that if you helped someone, you had to completely commit to the case and that might mean going to trial and everything, now the rules. allow us to section off and advise people in a limited capacity. And it has allowed some flexibility and the idea was to provide litigants in domestic relations courts with access to professional, lawyers. And now we're doing that, step further with the LLPs. Yeah,

Amy Goscha: 8:55

exactly. And I mean, there was a period of time where limited scope representation was not even allowed in the federal courts, and now it's allowed, and they actually have an attorney on staff where you can go, to the federal court, so like a clinic, and you can get advice from the, federal attorney on limited scope. So it's great because now we even have more flexibility in the fact that You know, LLPs, there are certain things that they can't do such as, help with a contested common law marriage or punitive contempt in those cases, they would have to advise their client to use an attorney, but they could also send it to like a limited scope attorney. So there's just a lot of flexibility And the cool thing is that Colorado has about, I think it's 67 applicants who are looking to sit for the LLP exam which is, I mean, probably the most that any program has had so far, in the nation. So that's pretty exciting.

Ryan Kalamaya: 9:54

And Amy, before we move on to the expedited process for listeners that don't know, how are you so plugged into all this? What is, is it just because you're working in divorce cases or is there some other kind of source of information that you spend your time dealing with that kind of is related to these topics? Yeah,

Amy Goscha: 10:15

so I got involved because I sit on the the advisory. Committee, so I'm on the oversight committee. I'm actually the vice chair. There's a judge who is the chair of the oversight committee of this program. That's, I'm doing that as well as I'm the chair of the outreach and education committee for the LLP program. I do work to talk to, the Bar Association, the media. The newspapers we really found that educating people and really talking to, the important constituents up front was really important. And I also sit on the Supreme Court. Committee on family issues. So that's how I've gotten involved in these types of issues.

Ryan Kalamaya: 11:00

Yeah. I think for listeners, they may think that you and what we do is just work on client cases and that is, at times, the vast majority of what we do, but, some lawyers, like you and then, I sit on various other kinds of subcommittees or things related to the actual practice of law. figuring out about rules, for example. And we'll talk about some of the kind of thoughts out there about revising the rules that relate to divorce and the laws and whatnot. But why don't we talk about the expedited process? I mean, Amy, one of the things I get is people will say. How long is a divorce going to take? And you talk about this sworn financial statement and all these, forms that I have to fill out. And I cannot tell you how many times I've heard, do I really need to fill this out? So why are those kinds of observations, relevant when we're talking about the expedited? Process, Amy. Yeah,

Amy Goscha: 11:56

so what we're looking at is are there certain types of cases where we could apply an expedited process? And one place that we're looking to that Denver has actually been doing this for a long time is actually you can sign if you don't own real estate and you have no children, you can sign an affidavit and not do your sworn financial statement to get divorced. They just found that there's thousands of cases and there's certain ones that they, that don't need to require this whole, like process that you're talking about on, financial disclosure. So we're really looking at, for those types of cases, for cases with no assets and no children, there probably really should be an expedited process. And we're looking at in Colorado, we have a 91 day waiting period from the time that You know, you file a divorce or serve to when the court can enter the decree. So we're looking at, like places like, I believe Nevada doesn't have a waiting period. In certain cases it might make sense not to have a waiting period before the divorce decree is entered.

Ryan Kalamaya: 12:59

Yeah. I mean, you see these references in various movies to people going to Vegas and they get a shotgun wedding, but then they also just say, oops, it's like. The hangover, I watch that on a plane and where they, they mistakenly, what happens in Vegas stays in Vegas. And, the guy gets married overnight doesn't even realize it, but at least the idea, these kind of rules, I think there's other states like. That North Carolina or other places where they have to be separated for a year before they can even file The idea is to frustrate The process of divorce because it's bad. It's morally corrupt. Do you really want to do this? There should be a cooling off period we're going to make it as difficult as possible and that is left over from a you know a prior age of frowning upon divorce. And so the idea that, in Colorado, do you need to wait 91 days to cool off? Are you really going to reconsider? I mean, yes, we, I see reconciliation happen, fairly. It does happen, a fair amount. Is it because of that 90 day, and often it is, it's people that there, there is a lot of stuff on the line. And when I say stuff, I mean, property and history, if someone is married for three years, they've been living paycheck to paycheck, they don't have kids. Those kind of issues, I would say probably make up the 75%. Like the majority of those 75 percent people going without lawyers, it's because there's really, there's no reason, they can't afford attorneys and there's nothing really to fight over.

Amy Goscha: 14:39

yeAh, and I think, just so I don't forget, that what's interesting about Colorado or our landscape is that Colorado has mainly has small law firms and our state is so big we have areas like Aspen, Vail, other areas where, you know, part of the issue is sometimes not having access to the professional within so many miles, we'll talk further about, some of these other experts that you may or may not need in a family law case, but sometimes access is not even just. The money piece, it's like, where is the professional located?

Ryan Kalamaya: 15:13

100%. I mean, I have a lot of work in Telluride and it's primarily because, Telluride has high end clientele and there's no one there locally that really specializes in family law. It's that specialization component and there's, there are certainly communities that are underserved in particular areas, but it's great to hear that we're looking at updating the rules to reflect, the reality speaking about updating the rules and the reality, why don't you talk to us a little bit more about the pro bono hours and some of the issues involving pro bono

Amy Goscha: 15:48

work. Yeah, so one of the notions has been maybe part of the pro se, the solution to the pro se crisis is to require all attorneys to do mandatory pro bono hours. In Colorado, we don't have mandatory pro bono hours. There's, like a, I guess a recommendation that every attorney should do at least 50 hours every year. But it's, it does not look like In Colorado, there will be mandatory pro bono hours required by attorneys. And part of it is when you have these domestic relations cases if you had an attorney who is a transactional attorney, and then you're having them come in, to do a domestic relations case, they're not going to necessarily know how to even do it.

Ryan Kalamaya: 16:34

And for people that, to put this in context, we have public defenders, they represent people that are charged with crimes that cannot afford an attorney. The obligation to provide an attorney, if someone cannot afford one, does not extend to civil cases. So it's only criminal cases. Pro bono is basically attorneys working for. For free. And they can do that where they believe in the cause or to help, people out. I used to be on the board of Alpine Legal Services. That is the legal aid Colorado arm, or it's not the arm, but it is in the Roaring Fork Valley. And it helps people that are, victims of crimes. It also the organization helps, people going through a divorce, and so they frequently will reach out to roaring fork attorneys or people in the area in the mountains to help out with domestic cases, civil protection orders, a state planning, elder law, elder abuse. And so they're always looking for. Pro bono work. And there are, metro Volunteers and Legal Aid, Colorado. So there are these different organizations that do overlap in into or cover domestic relations. But, having private attorneys required to do this, a particular amount and how you enforce that, I think it is highly unlikely, but I know it's something that certainly is being discussed.

Amy Goscha: 18:00

Yeah, absolutely. And I, I think where I'll go now is to talk about, does it make sense in Colorado to have specific rules that are essentially like family law rules? You would have all of the rules in one place, so it could be. Easier for people to say, okay, here's the family law code, you have every rule in here when it comes to arbitrator, all the different roles for PCDM, in one place. So there is like a DR rules committee in Colorado that is looking at whether or not it makes sense to have DR specific rules. And the state that we are really looking at is Arizona. Arizona in 2006 adopted their Family Law Procedure Code. They have rules, 1 through 100 that essentially go through every part of a domestic relations case. And it's a specific code like in Colorado. We have a probate code. So it's interesting because Arizona actually has they've had this since 2006. They're going through rule changes that are becoming effective in January of 2024. So I reached out and I talked to essentially the editor of the lawyer magazine to figure out what are judges and lawyers. saying about, over the years, if these rules have been helpful and the feedback was, yes, they've been very helpful, but we've realized there's some changes that need to be made and so just from a high level, some of those changes that they looked at are, we need to put a timing on when judges issue orders in certain types of cases so one thing, I don't know about you, Ryan, but it's an issue is you go to court, people want a resolution, and then they have to sit and wait for a written order

Ryan Kalamaya: 19:53

I mean, I've mentioned on the podcast before, but, I used to be a prosecutor. And one of the things, cause I'm all about instant gratification. I'm a human being and we love instant gratification. It's why we check our cell phone all the time and all of that. But the thing about going to a jury trial is you often have to wait, but you get a resolution guilty, not guilty. And, one of the things professionally that I find challenging is, spending, months preparing for a trial, going into court, presenting your argument, and then the judge says, thank you very much I'll get this to you in three months, six months, and it's very, it's anti climactic, it is a challenge, I have seen, there's, the judge here in, in Picking County right now, Chris Seldon He rules from the bench and it surprises a lot of DR practitioners, but you know, I and on one hand, there are issues that I think courts they need to go back and review the evidence. They need to research the law and, there are things that you can't make. I don't think a decision right on the spot. Especially when kids are involved. I had a, issue in San Miguel County and Telluride, and the judge there ruled from the bench. And so we walked out and we knew what had happened. And, but I mean, you are right. One of the challenges is going to court, especially on temporary orders. I've been waiting for temporary orders in a case for two months and it really, is unfortunate and because there continue to be disputes and I think, timing on orders would certainly be helpful. But as you said, courts are taxed that, they're overwhelmed. Yeah,

Amy Goscha: 21:37

so I think one thing that, Colorado could learn from Arizona and some of these rule changes is they're putting on certain types of, I guess, matters and types of orders. A 21 day time period. For instance, you mentioned temporary order. In Arizona, if you go to a temporary orders hearing, 21 days after the hearing, there will be a requirement that there is an order. Certain stipulations that are filed with the court. One issue that I'm having in, and this is just in various counties, but just to, give you an example, like we had a CFI stipulation in one county. It took The court over a month to enter the order. I have another one where it's an appointment of a child legal representative. The court asked us to do selections and to nominate and it's been over a month. And the CLR has still hasn't been. Appointed. So I do think there, there are certain, things that we could do by putting a timeline in place to help things move forward, especially for kids.

Ryan Kalamaya: 22:37

As we move forward let's move on to the next topic, the CFI PRE crisis. We've recorded a separate episode. You did, Amy, with Kathleen McNamara. For the listeners that don't know what is going on with the CFI PRE crisis?

Amy Goscha: 22:55

In Colorado we now have a peer parental responsibility roster. We're finding that we just don't have enough CFIs and PREs. And in cases where there's disputes On parenting, a lot of times, as divorce attorneys, we're saying, let's hire, the PRE or the CFI, because the CFI can come in and talk to the children, talk to all of these expert, all of these collateral witnesses and can render a recommendation to the court as to what to do. But now we're finding that it's so hard to find. Qualified CFI or PREs. So what is the solution? I mean, we have PREs or we have CFIs and the cap on it because at one point, even when Ryan, you and I were practicing, essentially that was conflated and there was no cap, so one of the solutions was, why don't we carve out this set of professionals that can look at discrete issues and put a cap on it? Now there's not enough of them. And some of the things that we're looking at are, do you just hire a child psychologist? Can you hire, this type of an expert under a special master rule? That's a specific, rule. Do you just forego doing a CFI or PRE? investigation all together because they're just taking so long. And then court hearings are getting so set so far out. And so are you having to update that report? So it is a real issue that we're looking at.

Ryan Kalamaya: 24:24

Yeah. I mean, I'm on, we mentioned committees earlier. I'm on the child focused innovation committee. And one thing I know that they're we're discussing and that's where there is a pilot program in the Fort Collins county areas the idea of a, it's called Voice of the Child and, we're looking at different ways of changing the way that parenting disputes are handled. I mean, if you think about it, the litigation where you have a mom and a dad and they're at different, tables they have to, they have formal rules of evidence, they're, positioned. Adversely, it's contrary to everything that would, an expert would say is in the best interest of the child that in terms of collaborating, co parenting, you are forcing people to become adverse to each other just by virtue of the system. And I mean, that's not going to go away, but how do you mitigate that? And what are the ways that you can resolve that in a child and family investigator or PRE? That is certainly one As far as I understand, I went to, an interdisciplinary kind of meeting with judges and professionals down in Boulder and they have the same issue down there. And a lot of the CFIs, we're saying, listen, we're getting out because, we might do the evaluation and we could be, we are granted immunity in terms of a civil lawsuit or something like that. But they're all registered with the department of, the DORA. And what happens is someone, Erica Melanie Wolfe, that is really upset with how things went down in their evaluation, then they grieve these professionals. And so from an insurance standpoint, from a time standpoint, there, people that even are, and if you look at some of the most reputable PREs out there, they get these awful reviews online and it's because it's someone that's super pissed off now, are they all doing fantastic work? There's definitely, I've seen some questionable work product, but you know, that's one of the real problems. And it doesn't seem as if there is a quick fix or a silver bullet. Do you pay them more? Do do you open the barriers to entry there? I don't think that anyone has a perfect solution, but it is a real problem and, people should be aware of it. We've talked about it before and it just doesn't seem to be getting any better.

Amy Goscha: 26:46

Yeah, exactly. One thing that has also, as we conclude, this section is, does it make sense in Colorado to do a dedicated family court? And what that means is, A specific court that would be just family law, because Ryan, you were saying within the traditional civil system, it's very adversarial. I don't think that Colorado, it's going to be a long time before we get a dedicated family court, such as they have in New York. We just don't have, frankly, the numbers the population that would provide for funding to do that. But I do think possibly doing these DR specific rules could, could be helpful, putting some deadlines in for timing of orders. One thing Arizona also is doing is they have a specific education order. So it's a simple one sheet order that says, okay, this is what you give to the school so the school knows who can make, certain decisions. So I do think that, Colorado looking at those things along with, LLPs. Is this stuff in the right direction?

Ryan Kalamaya: 27:50

The final thing that I'll leave listeners to ponder and for you to think about too, Amy, and that we've talked about on this podcast before is what is the impact of technology going to be on DR and in the courts? We have this system that has been in existence since before the. Country was even a country. I mean, my daughter right now is doing a thing on the Revolutionary War. I mean, the idea of how we manage these kinds of disputes has a long history, but now you're having the impact of, could you have a computer system that says how much do Eric and Melanie, how much should they get in their divorce? log in with their Wells Fargo credentials and their Schwab credentials, and then it spits out a number. Is that something that, and how do the courts take that into consideration? I mean, I know that you're close with Kim Willoughby. She's has a new premarital agreement company that is based on online. And so how do you work with. Those, that is a change that is, going to be really interesting to see what impact that has on these kinds of cases.

Amy Goscha: 29:00

Yeah, very important. The technology piece, I think, is critical. And definitely a piece that needs to be looked at.

Ryan Kalamaya: 29:09

Yeah, I mean, we've had various episodes and we've seen the, the judges be more open to having You know, web, Webex video and having experts testify via video. And, there's that next step. The reality is that the judicial, not necessarily judicial, but the legal industry in and of itself is fairly slow to adopt, some of these changes and changes, but I think for now it's really helpful for people to understand what you are working on. And what is going on just across the state and, I'm hopeful that we can have a conversation and a year and reflect on, the various changes. It won't be as much as, probably we hope and, we're always trying to improve the system and there's no doubt that it's not a perfect system, but compared to other countries and what, we do it's as, it's a. It's as good as we can expect, right now. Yes,

Amy Goscha: 30:08

I agree. Thanks, Ryan.

Ryan Kalamaya: 30:11

Until next time, thank you for joining us on Divorce at Altitude. hey everyone. This is Ryan again. Thank you for joining us on Divorce at Altittude. If you found our tips, insight, or discussion helpful, please tell a friend about this podcast. For show notes, additional resources or links mentioned on today's episode, visit Divorce at Altittude dot com. Follow us on Apple Podcasts, Spotify, or wherever you listen in. Many of our episodes are also posted on YouTube. You can also find Amy and. Law or 9 7 0 3 1 5 2 3 6 5. That's aaa.