DIVORCE ACTION TIMETABLE
By Sari M. Friedman, General Counsel
FRALI and FRANY
How long will it take? How much will it cost?
These are the most frequently asked questions at the start of a divorce proceeding. How long it will take is frequently up to you and the defendant. If you can keep disputes to a minimum, the process can move along morequickly and the cost can be minimized.
But what is this process that you have just embarked upon?
And how can you help to move it along at a reasonable pace?
Getting Started/How the Process Begins
Divorce proceedings begin with personal service of a summons that states the nature of relief requested, i.e. you want a divorce and why.
The divorce summons can stand alone, or it may be accompanied by a complaint that details the specific acts of wrongdoing that constitute the grounds for divorce.
In response to the summons, the defendant puts in a notice of appearance and an answer to the complaint if it has been served.
If however, only the summons has been served, the complaint must be served within 20 days after the defendant's notice of appearance.
The defendant's response may contain a counterclaim for divorce. It must be served 20 days after the complaint has been served.
Any reply to the counterclaim must be served 20 days after the service of the counterclaim.
If everyone cooperates, this procedure usually takes two to three months.
Either party's attorney can then file with the court, a demand for preliminary conference. In effect, this is a request for a court date to schedule a series of dates for discovery. Typical Discovery is frequently:
- serving a demand for discovery and inspection of documents
- the other side to respond by supplying the necessary materials
- examinations before trial (EBT) where the attorney asks the opposing litigant questions under oath with a court reporter recording answers. These questions are usually limited to finances.
- timetable to serve interrogatories (written questions on finances)
- the Court also sets a certification date which is a date to come back to court to certify the case is ready for trial once discovery is completed
The process can take an average of three months at a minimum.
At the preliminary conference, if custody is in dispute, the court will address choosing a forensic doctor, a law guardian to represent the child or children, a forensic psychologist or psychiatrist to interview the parents and children and administer psychological testing, and then write a report citing the expert's opinion of what custodial and visitation arrangements are in the children's best interest.
The entire process can also be delayed by many unforeseen difficulties. For example, you may run into judge and/or attorney scheduling conflicts, litigants unavailability, or an inability to supply requested information, or non-compliance with requests. If you need to retain an expert to evaluate a business, it requires a request for expert fees a procedure that can sometimes take several months. In a worst case scenario, the funds awarded are sometimes not forthcoming and your lawyer may have to file a motion for enforcement. Meanwhile the discovery process is being delayed.
Although many divorce actions are ready for trial within the first year, some cases (as illustrated above) take longer especially if discovery is complex and if there is noncompliance.
Pendente Lite Relief (a Temporary Court Order until a Trial)
During the course of action it is common that one or both sides files an application for temporary relief such as, support, custody, visitation attorney's fees. This is usually done after the summons is filed and relief is sought pending the trial. This has nothing to do with preparing the case for trial. This relief, which is usually granted without a hearing can be burdensome. It usually gives one party an incentive to move quickly to trial, and the other party a reason to delay.
When the Case is Ready for Trial
Once a case is certified as ready for trial, a note of issue is filed and a trial date is set. The court will take testimony on the date of trial. The Trial date can be adjourned if the Court, an attorney or one of the litigants has a scheduling problem. If the case is not settled, the court will reserve decision on the issues and render a written decision usually within 60 days after trial. A proposed judgment of divorce, incorporating the terms of the decision after trial or settlement by the parties, is then submitted to the court to sign. The divorce action is concluded with the signing of the judgment of divorce.
How long will the divorce take? And how much will it cost? In large measure that is up to you and your spouse. Lawyers charge on the basis of time. The ultimate fee depends on the time put in. Obviously, time and cost can be minimized by curtailing disputes. And though we have listed many contingencies that can delay the process, chances are you may face one or two of these but not all of them. The best approach is to stay calm, be reasonable, and stop any unnecessary fighting. Cooperation saves time and money.