How a Divorce Works (part 2)

Now that you understand the language, we need to talk about procedure. There seems to be two schools of thought on procedure: 1) the rule of law is sacrosanct and must be followed strictly upon pain of death; or 2) as long as everyone comes to the courthouse on the same day and at roughly the same time, we might be able to proceed.

Guess which camp I fall into.

Truthfully it is somewhere in the middle, but for the most part Courts depend upon procedure to operate. There are some gray areas, but timelines and schedules do matter, and failing to meet them can jeopardize what you are trying to accomplish. To avoid pitfalls it is important when speaking to your lawyer to understand what the timelines are, not just for your case but also how the case fits into your every day life. While your hearing may only last an hour, the preparation for that hearing, getting to and from the Courthouse, attending the hearing, and communicating with your lawyer will take much more time. That is time away from the other things in your life that you were doing before being involved with the Court. Trials can go for days, and the preparation time is increased accordingly.

Before COVID-19 and all the fun that follows when Court systems close, we established a goal in our office to try and resolve new cases within six months. That assumed the case was not going to settle, and we would need to proceed to trial. That is an ambitious goal, and sometimes cases can take longer to prepare. While the actual timeline for your case may vary, you can expect the following at the outset:

  1. Petition/Answer – Once the petition is filed the other party has 21 or 30 days (depending on whether they live in the same State) to file an answer. The Petition cannot be granted for at least 60 days, but that is the minimal waiting period, and you should not expect your case will be final on the 61st day, even if you believe everything to be agreed upon. Trust us, it’s not.
  2. Discovery – Assuming you and the other party are not in agreement, lawyers want to conduct discovery to identify all issues, witnesses and exhibits before proceeding to a hearing or trial. No one like surprises, and discovery can be extensive depending on the issues. Ideally, discovery should be completed within 90 days, but things happen like waiting on appraisals, accountings, reports from counselors, or just life in general.
  3. Settlement/Mediation – Once discovery is completed, issues/evidence are identified, and strengths and weaknesses assessed, settlement negotiations or formal mediation can be productive. We believe discovery should be completed first so we can avoid the issue of the unknown. Guessing what a house is worth, how much is in a retirement fund, or what a counselor will say regarding children, is difficult. Best to have that information before beginning negotiations.
  4. Hearings – Courts differ as to scheduling, not just from Judge to Judge, but also depending upon current caseloads. If an issue needs to be addressed before trial (reviewing temporary orders, a sale of property, etc.) a motion hearing can be held within a few weeks. However, hearings can be continued while the issues are discussed and offers of settlement reviewed.
  5. Trial – Sometimes there is a reluctance to schedule cases for trial. Judges and counsel want to assume cases will settle, and hopefully they will. But, settlement cannot be guaranteed, and as discussed previously, it is best to set a trial date and not need it, than hope for settlement only to end up scheduling a trial months after the date you could have had. Our goal is that if a case is to be tried then trial should occur within six months, but that timeframe is ambitious. Being proactive, and asking for a trial date early can help in getting a date set, even if it is nine months away. 

As stated before, your lawyer needs your help. The more help you provide, the better your case will be prepared. Additionally, you being proactive in providing information to your lawyer makes it more likely the above timelines can be met. In our practice we find clients to be the most helpful by:

  • Providing documents – Your lawyer will need documents from you. Those documents may be bank statements, tax returns, school or medical records for children, or just completing intake information. Without the documentation the lawyer will not have all the information, and will not be able to give you good advice, so provide it early in the process.
  • Reviewing documents – Once you provide information the lawyer will begin preparing documents for your case. It will be very important for you to review the documents to be sure they are accurate, and respond timely. If there are mistakes (not from our office of course), then make sure the lawyer knows about them and corrects them before filing or sending to the other side.
  • Providing exhibits – If you are proceeding to a hearing or trial you and your lawyer will need to prepare exhibits to support your position on an issue. Different issues require different exhibits, but all the exhibits will either come from you or from information you provided. The sooner you can provide information, the better prepared your lawyer can be.
  • Contacting witnesses – Once you identify witnesses, especially if they are family or friends, contact them to make sure they know they will be witnesses. The lawyer will contact professionals (appraisers, accountants, counselors, etc.) but witnesses that you know personally should hear from you first. Make sure they are available for a hearing or trial, and letting your lawyer know if they are not.

The above timelines are long, and the stress of the situation will make them seem longer. Best advice: take a deep breath, know that this too will come to an end, and be proactive in moving your case forward. Nothing is done best in haste, and a well prepared case, even though it will take time, is the one you want to present to the Judge. Rushing to get to the courthouse without fully developing the evidence is a mistake. Judges tend to not want to make important decisions without knowing all the facts. Make sure you and your lawyer take the time to develop your case, and give the Court all the facts. To that end, it might be best to consider setting aside some time in your schedule specifically to address your case. That might be daily at first, then weekly, but making sure you have time to accomplish a task is the first step in competing the task.

As always, thanks for reading.

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