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, it could make it a shorter or longer time frame.
On the other hand, if the parties are able to arrive at an agreement, they could be divorced as early is 20 days from the initiation of the proceeding. 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.
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 simply 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.
So you really understand the process, the first stage of the divorce action is called the pleadings stage. A pleading is a legal document that explains to the court what type of relief you are asking the court (the judge) 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 to determine, it also gives the other party (your spouse) notice of what issues are to be tried. Not only does it give the court jurisdiction (the power) to make a decision on those issues, but it also puts the other side on notice of what to expect, so they do not claim that they were 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 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 child support and/or alimony; however, if a request for life insurance was not pleading (written) in the pleadings (petition or counter-petition), over an objection from the opposing side, the court is not permitted to require insurance. 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 and to timely properly raise any of your own claims for relief with the court.
FINANCIAL AND OTHER DISCLOSURE
Within 45 days of being served with the divorce papers, each party is required to exchange mandatory disclosure documents. 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 involved 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, where you can lose significant credibility with the judge. There are no juries in family law cases, so a judge (one individual) will hear the entire case and make all the decisions.
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, may actually be permitted to discount (disbelieve) everything else that you testified about during the rest of the trial. This can be catastrophic and simply cannot be overlooked. Therefore, preparation is key!
Parties are not limited to the mandatory disclosure, and oftentimes 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, and 4) and requests for production of the documents
Before the parties go to trial, the court will require both sides to attend a mediation session, which is confidential in nature. The mediator, who is neutral, cannot make a decision 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 with 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 judge even requires the parties to attend mediation more than once before the case is set for trial
The main reason for this mediation requirement is due to the court dockets being congested, which us why the court tries to encourage the parties to resolve their own dispute on their own without the court’s involvement. 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 order 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 are two huge benefits with having your case settled at mediation:
First, the attorneys’ fees required to litigate a case to trial, the costs associated with retention of experts, court re-porters 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; and
Next, you actually have more control than a judge! Would you rather have a stranger, who typically has only one day, to hear your entire situation, and make a decision that may significantly impact the rest of your life, or would you rather have the time to craft your own resolution to your case
As an example, imagine that a judge awards you alimony and certain assets that you requested, which is great, but on the other hand allows your spouse to have the majority of the timesharing (custody) of your children or, even worse, allows your spouse to permanently move out of the state with the minor children. These results could be devastating. Also, in a different context, even if you were able to get awarded the exact time-sharing (visitation) days that you requested, the judge could set the pick up time and drop off times to a completely inconvenient time that did not accommodate your work schedule. Once a judge rules, it is extremely difficult, if not impossible, in many cases to overturn that judge’s decision. So, you may be stuck with that decision. Therefore, you will have more control at mediation to work on a compromise on what is most important to you rather than allowing a judge to decide your fate.
At mediation, if an agreement can be reached, the case will be settled, and you could get divorced without the need of a trial. If the parties come up with their own agreement, they could be divorced as early as a week or two from the date of the agreement.
TEMPORARY RELIEF (MINIATURE TRIAL)
Often, there are certain issues that arise in most family law cases that simply cannot wait a year or longer to get resolved. There would be too much chaos if the parties had to wait a year or more for the judge to make a decision after hearing a lengthy trial.
Examples of these time-sensitive matters (that cannot wait until the time of trial) are as follows: 1) temporary child support; 2) temporary alimony; 3) temporary attorneys’ fees and costs; and 4) a temporary timesharing (visitation) schedule with the parties children.
Imagine a situation where a husband and wife, during the pendency of a divorce action, simply cannot agree on a timesharing schedule with the children. This would cause complete chaos as I mentioned. One parent would show up even earlier at the child’s school and remove the child before the other parent arrives at the school to pick up the children. In order to avoid this from happening again, the other parent tries to pick the child up earlier the following day. The police will typically not get involved in these types of situations as each parent has an equal right to their children and it is not in the law enforcement’s discretion to make a decision regarding placement of the children. They often will tell the parties that it is a civil matter, which means that the parties need to submit this matter to the court, so the judge will decide this issue at a temporary relief hearing. Otherwise, the parties are left to the solution of trying to play tug-and-war when it comes to their children.
This is the very purpose of a temporary relief hearing. It is a short hearing (typically 30 minutes to an hour in length), and it is like a miniature trial where the court will allow testimony (through witnesses) and the introduction of other evidence (photos, emails, documents, etc.) Otherwise, the parties would have to wait approximately a year or more to resolve these issues at the actual trial, which would drive the parties crazy.
Another example of a temporary relief hearing is if a spouse moved out of the house and stopped paying the bills or providing child support. The court would not let the children or the other parent starve or not have any electricity without adequate funds, and the judge could afford a temporary resolution to this problem pending the trial. Otherwise, one party could become destitute if that party does not receive any support during this timeframe.
The nature of the temporary relief hearing is temporary in nature, and the court could change its decision at the time of the final hearing (trial) once the parties have had an adequate opportunity to flesh out the issues and complete the discovery process.
As I mentioned earlier in the section about mediation, approximately 95% of the cases settle at mediation. One reason why only 5% of the cases go to trial is because one side, who has a warped impression of reality which is usually driven by emotion that they, will not listen to their lawyer and will hold onto an unreasonable expectation of what they think will transpire at the time of trial. They are so confident that the judge will rule a certain way. The other reason is because the parties are just too far apart on coming up with an agreement, and sometimes a trial is inevitable, despite the parties’ attendance at mediation and being properly advised by their attorneys.
Another reason why cases do not settle at mediation and instead go to trial is because sometimes parties hire attorneys who normally do not practice family law or handle divorce cases, like personal injury (civil) or criminal attorneys. Those attorneys, despite having much experience in their respective areas of law, do not know how to properly evaluate a case based on limited experience in the area of family law. This explains why you really need to hire an attorney with experience in family law in the first place and not another attorney who simply dabbles in it.
Trials could be very expensive, as I already mentioned, so it is very important to have a very proactive and focused (goal-oriented) attorney who will advocate for you and try to resolve your case without the need for a contentious and protracted litigation in the first place. This means that you will really want someone who is going to try to resolve the entire case at mediation by communicating effectively and persuasively to the other side’s attorney in order to avoid having to go through the enormous effort of having an expensive and lengthy trial.
If your case does go to trial, you must make sure that you have appropriate witnesses who will testify for you on your behalf. Sometimes, they will need to be subpoenaed to secure their attendance.
Another crucial thing that you need to realize is that trials require an exorbitant amount of legal work and careful attention to detail. For example, if two parties were fighting over the value of the marital home, and the wife, whom the parties agree will keep the home in her column, but are in
disagreement as to the actual value (dollar amount) that will be assigned to it, an appropriate figure would have to be determined. Let’s say that the wife’s expert (a real estate appraiser) testifies that the home’s fair market value is $400,000. On the other hand, the husband’s expert (also a real estate appraiser) testifies that the home’s fair market value is $600,000. This is a huge discrepancy and will make a big difference on the amount of the equitable distribution payment or offset.
Assume that both experts sound very persuasive on the witness stand and provide a very solid explanation of why his/her valuation is the correct one for the court (judge) to choose from. Let’s say that both wit-nesses attended great schools and have other impressive credentials, and both applied what appear to be very credible methodologies. What is the judge to do in that case? Which figure does the judge accept? Many people, including some judges (which may be surprising), do not realize that a judge cannot simply just pick a number somewhere in the middle, like $500,000 as this is not permitted in the law and will be reversed on appeal. The judge can only accept one of the figures, and can only make a “judgment” call as to which expert the judge thinks is more credible based on the evidence/testimony at the time of trial. This presents a huge problem since the swing (in this case $100,000) is enormous and can seriously affect the equitable distribution scheme and could severely prejudice a party financially.
Knowing that the judge can only pick one expert’s opinion over another, this means that your attorney must really know the cause and how to effectively cross-examine the opposing side’s expert’s at trial and to even be very diligent in taking the expert’s pretrial deposition.
This issue not only applies to valuations of the property. The same analysis goes with income figures, custody disputes, etc. Could you imagine a case where one expert projects the earnings of a spouse who has his or her own business with a figure that is well over that person’s real earnings, even if that figure was wrong? This would cause that person to potentially pay alimony, child support, and/or have to pay a lot more in the equitable distribution that far exceeds his/her actual ability to pay. This would be catastrophic and put the person in a situation where they would go to jail every year for many years to come or be forced to file bankruptcy. Keep in mind that a party cannot discharge child support and/or alimony in bankruptcy court. Therefore, you never want to be in a position where the judge makes a mistake and accepts incorrect figures!
Be careful! You may get what you are actually asking for!- Another issue to seriously consider with the trial process is even if you prevail on all the issues you wanted to at trial, the problem now is, that even if the court ruled in your favor, the other side could appeal the ruling, forcing you into the higher court (3 appellate judges). This would mean that you would have to go through a very costly appeal. In some cases, if the appellate court reverses the trial court judge, the whole case may be sent back to the lower (trial) court to be tried again on some or all issues. Alternatively, if the case settles before a trial based upon an agreement of the parties (through mediation or otherwise), this will avoid the entire issue of an appeal and have some level of finality to the process and give the parties a sense of closure.
Now, you can not only see the importance of trying to have your case settled quickly, at mediation or beforehand, in an effort to avoid the expense and uncertainty of having your case actually go to trial.
Therefore, it is extremely important to have a very well-trained attorney represent your interests and either try to settle the case at mediation, prior to having the case get out of hand. If, however, a trial becomes inevitable, despite your best efforts to settle, you will need the right attorney who will need to properly and zealously represent your interests by doing their due diligence and advocating for you in the way you deserve to be represented.