In many cases, when the marriage is “done”, the question becomes “how fast can I get a divorce?”. The answer is, “it depends”. No one likes the uncertainty and turmoil associated with divorce. Often, a divorce significantly impacts family, friends, and work. So, in theory for most litigants, the sooner the divorce is complete, and the marriage dissolved, the better it is to move on in life. As a statutory matter, sixty days must pass before a trial court can enter a divorce if there is an agreement on all terms.
Most of the time the divorce is not completed in sixty days because there is some disagreement that has to be worked out between the parties or resolved by the passage of a little time. This is the typical scenario. In a few cases, the dynamic on divorce is legal, physically and emotionally toxic, and divorce proceedings may drag on for months or years. Is this your case?
This blog explores the three (3) common situations where despite the best efforts of the lawyers and parties, the case is likely to drag on for some time (or a long time) and may have to be decided by a judge at trial. The more you understand the dynamics associated with these cases, the better you will be able to identify them, withstand a protracted divorce by understanding and accepting this, or determine ways to resolve (sometimes by giving in) to get the divorce finalized.
The first dynamic is perhaps the hardest to identify but most common. Simply put, one party does not want the divorce and is slow in acting with his or her counsel to do everything in the case, ranging from completing a required financial declaration of the parties’ assets and liabilities to providing workable dates for court-ordered mediation and everything in between. Sometimes this dynamic is a little different and one of the spouses (such as the one who did not have an affair) is angry and unreasonable, slowing the case and fighting even simple issues. Ultimately, time may heal this wound or the case will finally proceed to trial. Identifying this scenario will help you cope with the process and help your attorney plan ways to move the proceeding along, such as forcing mediation to occur by a court’s order and requesting a trial date to bring an end into sight.
The second dynamic is unique to divorcing spouses who have children. Simply put, both parents want custody of the children and will accept nothing less. In these cases, there are several tools that may expedite the process, such as a custody evaluation. With a custody evaluation, a third-party neutral, such as a forensic clinical psychologist, may evaluate the parties and make recommendations for the court as to what custody and parenting time arrangement is in the children’s best interests. While the court has the ultimate say as it looks over the children of divorce, a custody evaluation may soften one or both parties’ positions. If not, the case will go to trial. Is this your case? Let your counsel know. If so, it may be of use to consider that the unspoken trend in child custody litigation is or some parenting arrangement that approximates equal time with each parent or joint physical custody.
The third, and equally challenging scenario, where a divorce may drag on for a long time, is when there simply is not enough assets and income between the parties to live the lifestyle they had (or still have) when married—or divorce may be a downright financial hardship for one or both parents. In these cases, the parties may well both want to be divorced, but are unable to come to terms to resolve the financial issues in dispute and the case winds up going to trial. Ironically, the time, lost opportunity costs, and expense of the trial makes the ultimate situation worse than if the parties had agreed to a “bad” deal earlier.
These three scenarios position divorcing parties for a long time in litigation. However, where you can identify these and share them with your attorney, there are numerous legal tools available under the Divorce Act to assist your attorney through the court to move the case along, such as asking for a case management order which sets a timeline on all of the issues that must be addressed before as set date for a divorce trial. Also, identifying this dynamic will better position you to accept the fact the uncertainty of the divorce may exist for a good while to better enable you to plan for this contingency.
This blog post was written by attorneys at Dixon & Moseley, P.C. who handle divorce cases of all types throughout the State. This blog is intended for general educational purposes and is not legal advice. It is an advertisement.