Clients often ask “how long will my divorce take?” The answer depends on a variety of factors but the main one is the level of cooperation between you and your soon to be former spouse. The whole notion of cooperation in marriage dissolution proceedings may seem out of place but the reality is that the ability of the two of you to agree on the issues in your case is directly proportionate to how long it will take to complete.
A marriage dissolution begins when a party known as the Petitioner files a petition with the court requesting that their marriage to their spouse be dissolved. The petition usually also requests additional legal relief such as the division of community property, payment of debts, child support and custody or spousal maintenance also known as alimony. Either spouse can be the Petitioner so long as one of you meets the 6 month residency requirement for Texas. One of you must also have been a resident of the county where you file for the previous 90 days.
Once a petition has been filed with the court, it must be served on your spouse who is known as the Respondent to give them notice that the case exists. The easiest, most cost effective and time saving method is for the Respondent to agree to accept and acknowledge service in writing which is then filed with the court. This lets the court know that the case is ready to proceed to the next level. Even at this point, the very soonest your case could be over is at least 61 days because the court, by law, cannot enter a final decree until after 60 days have passed from the time of service on the Respondent. This is known as a “cooling off” or waiting period in the event the parties change their mind about wanting a divorce. Considering that most courts have busy calendars, even a uncontested divorce hearing will usually be scheduled well beyond the 61st day. This is known as a default divorce and is the best case scenario.
Temporary or interim orders are important to have in place even in a default case. Such orders can be obtained either by agreement between the two of you or one of you may specially petition the court for them. Temporary orders usually concern such matters as which spouse will be permitted to reside in the family residence pending completion of your case, who the children will spend time with and when as well as the payment of temporary child or spousal support or community debts. If the parties agree on these issues, their attorneys can prepare and submit a stipulation with the court which is usually adopted by the court as a formal temporary order. A request for temporary orders can be filed at the same time as the petition and must likewise be served on the respondent.
Temporary orders may also include a temporary restraining order or protective order. These kinds of orders prevent or limit one or both of you from transferring, selling, destroying or giving away marital property or they may limit personal contact between you to prevent violence or abuse.
If you cannot agree on these matters, a hearing will be convened by the court, (if either of you requests one), where a judge will listen to evidence presented by the two of you before rendering its decision. Before a hearing, the court may also require both of you to submit to mediation to reach an agreement. A mediation is an informal proceeding facilitated by a mediator with special training and experience in helping divorcing spouses reach an agreement.
Regardless of how temporary orders are reached, it is recommended you have them in place to avoid disagreements or disputes about the responsibilities of either of you while your case is still pending. They may also be necessary for the personal safety of you and your children. Remember, you are not divorced until a legal decree or judgment has been issued by the court. This means that while your case is pending you are still married and the actions of either of you can continue to effect your legal responsibilities to third parties, creditors and each other!
Should I Respond or Settle?
If you are the Respondent you will have to decide if you should file an answer to the petition, negotiate a settlement agreement, or contest one or more issues of the divorce. One does not exclude the other although the two of you can agree to an extension of the answer deadline pending negotiations and discussions.
It is in everyone’s best interest to negotiate and reach an agreement. Doing so avoids a costly, time consuming and emotionally draining divorce experience. If the two of you are not able to reach an agreement, your case may require a trial in front of a judge who will then render their own judgment on the issues in your case. Failure to agree removes your ability and your spouse’s to construct your own agreement on what may very well be some long term or financially important issues such as the amount of time spent with your minor children over the upcoming years. If you have very young children, a court’s order will be in place for many years to come unless there is a substantial change in future circumstances that justifies its modification.
Once the Respondent has been served either by accepting service or using a process server, they have between 20 – 28 days to respond. This is known as the answer deadline period referred to above. You and your attorney may agree, in writing, to a limited or open extension of time to allow the two of you the opportunity to work things out and come to an agreement on all issues. If that happens, the case will then proceed as a default proceeding or uncontested divorce which means that more documents are filed with the court letting it know that you have reached an agreement and want to dissolve your marriage without a trial.
If your spouse’s whereabouts are unknown, the service of process may add some time to your case. Notice of the filing of the petition has to be published in a newspaper of general circulation for at least one day in the county where the petition was filed. This provides constructive notice to the missing spouse even if they do not actually read it in the paper. A notice of publication is then filed with the court which then allows your case to proceed as a default divorce.
After theses default documents are filed with the court, a date for a default hearing will be scheduled which is usually only attended by the Petitioner and their attorney. Once an agreement is reached, the Respondent, in writing, waives their legal right to contest the case. This waiver is filed with the court so the judge will know that there is an agreement.
Prior to the hearing, the original, signed Marital Settlement Agreement (“MSA”) is filed with the court along with a request to proceed as an uncontested case.
At the default hearing, the Petitioner is placed under oath and is asked a series of questions by their attorney to establish the existence of residency requirement among other important information for the judge. The Petitioner’s rehearsed answers inform the judge that an agreement has been reached on all issues and that the grounds for dissolving your marriage exist. The judge will then render a decree of divorce which legally dissolves your marriage. Typically, the judge will also accept the MSA regarding the issues in the case so long as it is equitable, fair and in accordance with any applicable guidelines pertaining to child support and parenting arrangements for any minor children of the parties. The terms of the MSA become legally binding and a part of the decree of divorce.
The opposite of a default divorce is a contested divorce. A contested divorce occurs when the parties cannot or will not come to an agreement about one or more of the issues in their case. If this happens, your case will take much longer to resolve. Not all contested divorces end up in a trial but that is certainly likely unless an agreement is eventually reached between the parties.
A contested case begins with the Respondent filing an answer to the petition. The answer typically disagrees with some or all of the allegations contained in the petition and may contain additional allegations and requests for relief than the petition. This places the case at issue which tells the parties, their attorneys and the court what the contested issues are. Typical contested issues may concern how community property should be divided, which parent should have custody of any minor children, which party should pay child or spousal support and any other matters which the parties do not agree on.
A contested divorce will take more time. Instead of cooperating and voluntarily exchanging information with each other, the parties and their attorneys may engage in a process known as discovery. Discovery is a legal process that is available to litigants to uncover important information that is not otherwise available to them. The tools of discovery have specific notice and deadline requirements often as long as 30 days. These notice and deadline periods will obviously add on days, weeks or even months of delay in your case.
Discovery may take the form of interrogatories which are detailed written questions that are served upon the opposing party who must provide written answers under oath. These questions and answers not only become public records but are expensive and time consuming to both parties.
In some hotly contested cases additional discovery may occur such as depositions. A deposition is a legal proceeding usually held in the office of one of the attorneys. A court reporter is present who administers an oath to the person or witness to be questioned by the attorney who noticed or convened the deposition. The questions, answers and any objections are recorded verbatim by the court reporter who then prepares a written transcript of the proceedings which also consumes more time. A deposition transcript may later be used during a trial to either provide evidence to the court or impeach a person’s testimony at the trial. Depositions often take a couple of hours or more to complete which will add to both parties cumulative legal fees and costs. Court reporters and written transcripts are costly.
Contested cases with complex issues may also require expert witnesses to analyze and render opinions about the value of certain assets. These experts may be accountants or asset evaluators who have special training and experience. Sometimes medical or psychological experts may be necessary to provide opinions about parental fitness or other relevant issues in your case. A qualified expert is also expensive and using one will add more time to your case. If the parties cannot agree on using one expert for a particular issue, both sides may retain their own experts which could double the time and expense involved.
Sometimes even a contested case can be resolved by agreement of the parties once discovery has been completed. In such a situation, your case may proceed to conclusion as a default case which follows the same procedure explained earlier.
The two of you may also agree to binding or non-binding arbitration in lieu of a trial. If you agree to binding arbitration, the court must render an order consistent with the arbitrators findings.
If the two of you still cannot reach an agreement, a good way to avoid going to trial is mediation. The use of mediators in Texas is well recognized and can even be ordered by a court an alternative method of resolving disputes in family law matters. A professional and experienced neutral mediator may be able to help you reach a consensus on all or most the remaining contested issues in your case.
A successful mediation can take as little as a half a day or as long as a couple of days. Unlike a trial which requires hours of preparation and planning, mediation is informal and non-binding unless the two of you agree to make it binding. The goal of a successful mediation is to obtain at least a written outline of the agreement which one or both of the attorneys can develop into a fully binding agreement that can be presented to the court in lieu of a trial. If an agreement is not reached, the next step is trial.
By the time your case is assigned a trial date, it has probably been pending for at least several months or more. As previously mentioned, formal discovery will definitely increase the time spent on your case, usually upwards of at least a couple of months. It will also take time to evaluate and review the information obtained during discovery. Sometimes the need for additional discovery arises which continues to add time to your case.
A relatively low percentage of divorce cases end up in trial but when they do, it will typically take somewhere between a half a day up to several days to complete. Divorce trials of more than a couple of days are rare.
Keep in mind that a lot of time is necessary to prepare for trial beforehand. Your attorney will need a couple of days or more to organize the evidence and prepare a plan for presenting it to the court. If there are witnesses in addition to the parties they have to be prepared and rehearsed beforehand as well. By now, you should be clearly understanding the benefits of avoiding trial if at all possible.
Just like any other trial, the Petitioner has the burden of proof which means they and their attorney have to present sufficient evidence to prove their position on the issues. After the Petitioner rests, the Respondent and their attorney present their case which typically is intended to attack and discredit the evidence presented by the Petitioner. After the Respondent completes their case and rests, the Petitioner may have the opportunity present additional evidence to rebut or challenge the Respondent’s evidence. After both sides have finished presenting their evidence, the judge typically takes the case under submission which means he or she will review and consider all the evidence before eventually rendering a decision. Some judges may render a decision immediately after the presentation of evidence is completed but that is not likely to happen if there are complex and hotly contested positions concerning one or more issues in the case.
Even after a post trial judgment is rendered, your case may not be over yet. This is because both sides may decide to appeal one or more issues in the trial court’s judgment. The appeal process is another whole legal proceeding unto itself which is very time consuming and costly. Once again, there are certain deadlines that must be met before the case is even accepted on appeal which is not often the case. Family law appeals are not very common but they do happen especially in cases involving unique or unusual issues that may not have been previously decided by an appellate court.
The quickest divorce cases are those with relatively simple and few issues. When there are children from the marriage or there is a substantial amount of property to be evaluated and divided your case may likely take more time. Cooperation and a willingness to compromise are key to a faster resolution of your divorce.