You might be surprised to hear that I have scads of clients who, when I email, don’t respond for a week or more. I have clients who retain and, in a flurry of activity, work with me to prepare a first draft of a separation agreement, which goes untouched (on their part, mind you) for a year or more.
Yes, a year.
In fact, I have several matters on my client list right now that have been open for more than two years. There are a lot of reasons for this, of course. In some, its simply because a husband won’t play ball, and my client isn’t quite ready enough to force the issue that she’ll file. In others, it’s because a reconciliation is happening. In still others, even though the marriage is over, things are okay enough to just live with it – just a little while longer, anyway. There are a million different reasons and, for one reason or another, I often find that clients end up taking much longer with the divorce process than is necessary, strictly speaking.
And it’s not because of the slowness of lawyers or courts or other things – some of which I can control, and some of which, admittedly, I can’t control.
One thing that all my clients have in common, though? Despite how long they take to actually get divorced, when they first go to hire me, one of their biggest question is, “How long will it take?”
To that, I always say that a lot of it depends on you. You’re the client, you’re in the driver’s seat, and you have a fair bit of control. You can’t control the process entirely, especially if your husband is pushing to have the divorce move along more quickly. If a divorce is filed with the court, there are deadlines and procedural things that have to be achieved as well, which lessens the amount of control you have over the timeline.
But, in general, I can also give some guidelines.
Yes, for all the fault-based grounds EXCEPT adultery, you must be separated for a year before your divorce can be finalized. It’s important to note, though, that just because you can’t FINALIZE your divorce before you’ve been separated for a year, that does not mean you can’t file.
You can file for divorce as soon as your grounds exist. So, assuming we’re using desertion as our grounds, you can file for divorce as soon as he leaves the marital residence. Your grounds exist as soon as his last bag is out the door, so you can file – which means you can have a pendente lite hearing, conduct discovery, or, alternatively, negotiate a separation agreement – and move forward with the divorce.
When your grounds are adultery, you qualify for an immediate divorce – though, practically speaking, that almost never happens. You should prepare yourself for at least one year of separation anyway.
Yes, the law allows an “immediate” divorce in cases where adultery is proven, but, logistically, that can be challenging. Adultery is the most difficult of the fault based grounds to prove (because it carries the potential for both civil and criminal penalties with it), which means that you’ll need to provide clear and convincing evidence. You must also have a corroborating witness.
Ultimately, it’s up to a judge to accept your evidence and rule in your favor, but, in the event you can’t convince the judge, if you haven’t been separated for a year, you could wind up back at square 1. What does that mean, exactly? Well, it means your petition is dismissed, your divorce wasn’t granted because you couldn’t prove your grounds, and you have to start ALL OVER. As you can probably imagine, that’s needlessly expensive and time consuming. The alternative? Wait until you’ve been separated a year, so you can use literally any other grounds that you have in the event that you can’t convince the judge of your adultery claim. (Besides, in most courts, it’ll probably take you 6-9 months to get a trial date anyway, so it’s not like you’re pushing things out that much further!)
In a no fault divorce, you can get divorced after one year of separation OR six months if (1) you don’t have any minor children, and (2) you have a signed agreement.
There is absolutely no way to get divorced any quicker than 6 months – and it’ll take a little longer than six months, because you can’t file at all until you’ve met that 6 month minimum. So, you separate, draft and sign an agreement, and file on the first day after the sixth month. Then, you’ll have to file all your uncontested divorce paperwork, and that takes as much or as little time as the court takes.
If you have minor children, you’ll have to wait a year, whether or not you’re able to get an agreement in place. If you can’t get an agreement in place, you’ll have to set a trial once your one year of separation has elapsed; alternately, if you can get an agreement in place, you’ll file and move forward with the uncontested divorce after the one year has expired. Again, it’ll take a little bit of time to follow the uncontested divorce steps, but it’s not too long at that point.
Probably, if you’ve already filed for divorce, you can get divorced a little bit more quickly because you’ll have already filed a complaint and had the opposing party served. If you’re using no fault grounds, you can’t file until the year is up already, so you’ll have to file the complaint, have it processed and returned for service, and then wait 21 days for the opposing party to respond – which, of course, can delay things a bit.
Ultimately, you’re probably looking at 2-3 months beyond a year or six months, if you move with all the speed you can muster. There are things – like the 21 day period for your husband to respond to your complaint and how quickly the court moves to process these things—that we can’t control, and which can, in certain circumstances, add up.
You have some control over the speed of your divorce, but not completely. And, if you’re like many of my clients, you may find that YOU don’t actually end up wanting to move quite as quickly as you thought anyway.
But, then again, you might.
For more information, or to discuss your case with a licensed divorce and custody attorney, give our office a call at 757-425-5200.