A Good Essay on Divorce Law

Today, Andrew-Oh-Willike published on his blog what appears to be an outstanding analysis of Colorado Divorce law and how it might be improved.

While I am intensely interested in legal ethics reform, which is pretty cut and dried - lawyers and judges are either following the law and court rules or they are not - I very seldom write about divorce law because I don't understand it.  Other than obvious abuses of discretion, like a judge ordering a man to pay the opposing attorney for hours of waiting that the judge created, and at a higher rate than he normally charges when the attorney is the spouse of another judge, or of a judge refusing to rule on a motion, it is hard to figure out how to marry the two subjects.

Thanks to Andrew-Oh-Willike, I have a better understanding.  In divorce cases, the rules are that there are no rules.

The article also inadvertently provides insight as to why the legal profession has a bad attitude about complaints by litigants against judges.  The law gives judges so much latitude in divorce cases that it is easy to see why complaints about divorce outcomes can be seen an attempt to relitigate the case.  When the legislature says that there are no rules, complaint may be seen more as a complaint against the system.

Unfortunately, the legal profession then uses that as an excuse to dismiss all complaints.  There are legitimate divorce complaints where the judge clearly hasn't followed one of the few rules that apply.  I know of one where the state was sued because the judge wouldn't rule on a motion for two years (sound familiar?).

If you want what appears to be a good education on the holes in our divorce law, read Washington Park Prophet today.

Comments

[ohwilleke]

Colorado law actually provides a mechanism to dock the pay of a judge who fails to make a timely ruling on a motion (I doubt that a suit for civil damages against the state would prevail due to judicial immunity doctrines), but few are foolhardy enough to use it. The only reason to request that a judge's pay be docked is to force a denial of the relief you seek so that you may appeal it.

[Sean Harrington]

So . . . Oh-Willeke is admitting on the record that filing such a [futile] request under § 13-5-135 would axiomatically result in the judge denying the motion on that basis alone? Note that he didn't suggest that only an unethical minority would so act.

Of course, the same is true of recusal motions. And yet, we have a judicial oversight mechanism in this state that is an arrant farce.

On my site (http://www.knowyourcourts.com/News/news.htm), I've just posted H.A.L.T.'s assessment of Colorado's judicial discipline system, which I contributed to. (I also provided links back to a related topic/post on this blog).

Colorado received a "D+" to wit: "Colorado's system of judicial oversight is one of the most secretive in the nation."

In addition, the report found:

that Colorado rules allow some dysfunctional judges to be sanctioned with private admonition, and in these circumstances the public never learns of the judge's history of misconduct. And unlike policies in most states that allow citizens to speak freely about their ethics complaints against judges, Colorado rules have been interpreted to require that complainants not publicly disclose the existence of a disciplinary proceeding against a particular judge.

"The vast majority of states have abolished these sorts of 'gag' rules," said Senior Counsel Suzanne M. Blonder. "Colorado's restrictions not only violate citizens' right to free speech, they also keep the general public in the dark about whether the system of judicial oversight is operating effectively."