Chapter 1: The Process

How Long is the Process?

A divorce proceeding, which is also called a dissolution of marriage action, can typically last 1 year to 18 months from the time it is filed, if it is contested, and depending on the issues involved, the nature of the dispute, the judge’s calendar, and other issues involved in the proceeding.

On the other hand, if the parties are able to arrive at an agreement, they could be divorced as early as 20 days from the initiation of the proceeding. In most cases, this is the case if the parties do not own any assets or have any liabilities. In many cases, assuming the parties own property and/or have children, after the parties had an opportunity to exchange financial disclosure, the case could take around 3-6 months.

Deadlines to Respond

From the date of being served, by the sheriff or process server, with the summons and divorce paperwork, you have only twenty (20) days to respond; otherwise, the petitioner (your spouse as the filing party) could obtain a default judgment against you. Therefore, it is extremely important that you timely file your response and/or counter petition (your own request for divorce and other relief).

Time deadlines are strictly adhered to. It is not a sufficient excuse to say that you were ignorant of the law; therefore, you will need to make sure that you make arrangements immediately to protect you interests and ensure that you file on time.

Also, it is very important to file a counter petition in most cases, which means that in order for you to ask the court for certain relief of your own, like alimony, child support, timesharing, division of assets and liabilities (equitable distribution), you will need to file your own counter petition, seeking a divorce. It is not enough to file a response. In order for you to ask the court to award you affirmative relief, you will need to file a counter petition and pay the clerk the requisite filing fee.

Pleadings

So you really understand the process, the first stage of the divorce action is called the pleadings. A pleading is a legal document that explains to the court what type of relief you are asking the court to award you as well as why the court has jurisdiction (the power) to award you this certain type of relief. The typical pleadings are as follows: 1) petition; 2) answer/reply; 3) counter petition; and 4) answer to the counter petition.

This is important as it not only frames the issues for the court (the judge) to determine, it also gives the other party (your spouse) notice of what the issues are to be tried, so there are no surprises on either side. Not only does it give the court jurisdiction (the power) to make a decision on those issues, but also the other side is put on notice of what to expect, so they are not denied due process.

I often compare it to a TV guide, where you would be able to look up and know exactly what (show) will be heard at a specific date and time well in advance. This way, everyone knows what (issues) will be heard on a given day or time, so there are no surprises.

Also, it is important to realize that the court does not have the power to rule on issues that have not been pled (raised in the pleadings). As an example, at trial, a party requests that the other party is ordered to obtain life insurance in order to secure prospective child support; however, a request for life insurance was not plead (written) in the pleadings (petition or counter petition). Over an objection from the opposing side, the court is not permitted to require insurance as requested at trial. Likewise, if a party does not plead alimony in their petition or counter petition, the judge may not be permitted to grant that type of relief at trial. Therefore, it is extremely important to defend the petition timely and properly and to raise any of your own claims for relief with the court by filing and properly pleading your counter petition.

Financial and Other Disclosure

Within 45 days of being served with the divorce papers, each party is required to exchange mandatory disclosure. This reciprocal requirement means that both parties need to exchange certain financial records like a financial affidavit, which provides the other side with a summary of your income, expenses, assets, and liabilities, and other specific income records, such as recent pay stubs, last year’s income tax returns, bank statements, credit card statements, etc. The purpose of this is so each party can properly evaluate, at least on a cursory level, the basic financial issues and amounts in a case.

Many attorneys or parties overlook the importance of completing a properly drafted financial affidavit. If not done properly, this could present a major problem in your case. This is one of the most important documents that a court would consider in a divorce case. It also lets the judge know what the basic financial issues are, an illustration of a party’s need for support (alimony), and the other party’s alleged corresponding ability to pay.

Even though a financial affidavit can be amended during a proceeding, you do not want to be in a position of back-pedaling, which can lose significant credibility with the judge. There are no juries in family law cases, so a judge (one individual) will hear the case and make all the rulings.

What parties do not realize is that if you made a mistake on one item on your financial affidavit, the court, according to the law, actually may be permitted to discount (disbelieve) everything else that you testified about during the rest of the trial. This can be catastrophic and cannot be overlooked.

Parties are not limited to the mandatory disclosure, and often times they request additional discovery (financial documents and other important records) throughout the proceeding to gather additional facts and to properly prepare for a case. Examples of these are supplemental requests are as follows: 1) interrogatories; 2) depositions; 3) subpoenas to non-parties; 4) and requests for production.

Mediation Requirement

Before the parties go to trial, the court will require both sides to attend a mediation session, which is a confidential process. The mediator, who is neutral, and they cannot decide or testify in court regarding what transpired at the time of mediation. Instead, they work with the attorneys and the parties in an effort to help them resolve the case on their own by coming up to a mutual agreement.

In some circuits, judges require the parties to attend a mediation session before the parties can even set a temporary relief hearing, which will be explained in the next chapter. In fact, some judges even require the parties to attend mediation more than once in a case before the case is set for trial.

The main reasons for this mediation requirement are mainly due to the court dockets being congested, and the court trying to encourage the parties to resolve their own dispute on their own without the court’s interaction. The other reason is that most cases are resolved at mediation.

The statistics have shown that approximately 95 percent of the cases are actually resolved at mediation! It is no wonder, why the judges are so likely to have the parties go back to mediation in an effort to resolve their cases if they could not get it resolved on the first attempt.

There is something that I think is amazing about mediation or being able to arrive at your own agreement: control! You actually have more control by deciding the fate of your case and your future rather than having a judge make a ruling on your case. There are two huge benefits with having your case settled at mediation:

  • The Costs – first, the attorney’s fees required to litigate a case to trial, the costs associated with retention of experts, court reporters needed to be present at depositions, etc., could be so exorbitant that it is simply not economical or even affordable for most parties in the first place