Sunday, March 1, 2015

Why is it Taking so Long?


There's more to a divorce than the start and finish.

In many divorces, one party is much readier to finish the process than the spouse is.  Usually, that party has been thinking about and planning for the divorce quietly for a long time. The ready party often becomes very anxious to get through the process and start a new single life.

Unfortunately for that person, the spouse can really slow down the process by requesting counseling, doing extensive discovery, having multiple hearings and by refusing to agree on things.  The party in a hurry gets frustrated by how slow the process moves and that's understandable, but basically unavoidable.

Aside from the actions a spouse may take to intentionally slow down the process, there are a number of requirements or actions that typically put the brakes on any attempt to speed through a divorce. Here are some to keep in mind.

1.  Time must pass.  There is a 60-day waiting period in Texas and some sort of waiting period in most states. The petition for divorce must be on file with the court for at least two months before a divorce can be granted.  In addition, if you want to finish right after the 60 days is up, you need to have an agreement with your spouse.  That requires a spouse who is emotionally and financially ready to finalize the divorce, and that doesn't always happen right away.

2. Temporary arrangements are set up.  In most cases, temporary orders are set up by agreement or by going to court.  Experienced attorneys can pretty well figure out what you can get in a given court -- most judges have some standard rules and provisions.  One way or another, temporary orders usually are established for the benefit and protection of both parties.

3. Transitions are planned.  This may take place with the temporary orders, but there are a number of other transitional issues to cover.  The parties need to understand that their lives are changing and one or both will need financial help and time to set up separate households, possibly make career changes and deal with how to share their children.  One may have to go back to school.  Sometimes it's hard to find a job. Courts usually try to provide some help to the disadvantaged party on a temporary basis.

4. Information must be gathered.  This can be done formally through written discovery and depositions, or informally by requesting and receiving an documents that either party wants to see.  It's really helpful to prepare a spreadsheet with the assets and liabilities.  It's also pretty standard to get an Inventory and Appraisement from each party.  It's a formal, sworn statement listing the assets and liabilities in great detail.  An Inventory gets both parties to think carefully about what they have and may reduce the temptation to hide assets.

5.  Creating a strategy.  You need to come up with a strategy for a satisfactory conclusion.  Figure out what you want to end up with and you should try to imagine what your spouse will likely want.  Your strategy should allow both your and your spouse's needs to be met, if you want to settle. That sometimes takes a lot of creativity and some time.

6. Planning to settle.  Almost every divorce settles, so you need to figure out how and when that can happen. Sometimes, settlements come from informal negotiations over time.  That's usually when both parties are fairly rational and both are motivated to get the divorce over with. In more difficult cases, mediation is used and that is a very successful process.  If agreement can't be reached informally or at mediation, then the case is set for court.  Even then, many cases will settle at the courthouse, either just before trial or during trial.  Very few cases go all the way through trial. Of course, your case could be the rare one!

7.  Allow time for paperwork.  Unfortunately, just reaching an agreement is not enough.  After that necessary step, there's still a lot to be done.  A decree of divorce must be prepared and sometimes negotiated.  In some cases, we use an additional agreement incident to divorce to include provisions we don't want in the public record.When there's a retirement account to be divided, we prepare a qualified domestic relations order (QDRO).,  There are deeds, powers of attorney and various other documents to be prepared as well.  Many times it takes 3-4 weeks to get the paperwork drafted, negotiated and signed, and it can take longer if there are serious disagreements.

Every divorce is different.  You may have a friend or a friend of a friend who got a quick divorce in a couple of months, but don't assume that yours will go as smoothly.  That is a very rare exception. Talk to your lawyer at the outset about your hopes and expectations.  Your lawyer can help you get a fairly realistic idea of what your case might entail, but initial thoughts are subject to revision several times as you go through a divorce.  As things change, don't be surprised if you timeline changes. 

Please try to be patient.


1 comment:

Heather Jackson said...

Dick, these are great tips for anyone who is part of a divorce. When reading through these suggestions, I can't help but think of the benefits of staying married and working through hard times rather than getting a divorce. Sometimes, however, divorce is the best option. In these cases, it is important to hire a family law attorney who specializes in divorce. It's also important to keep in mind the things you suggested, such a allowing adequate time for paperwork.
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