Can I get a continuance in my Virginia divorce?
When a divorce is filed in Virginia, it doesn’t have to be served right away. In fact, sometimes, even after a case is filed and has been prepared for service, an attorney will hold on to it before having it served on the opposing party. That doesn’t necessarily mean that there’s a clock somewhere ticking down to a court date, but sometimes it does. We often have people who come in, telling us that they were only just served with their divorce paperwork, but that there’s a court date a week or two later.
Understandably, they often feel panicked, and unsure of how to proceed. It doesn’t feel fair, and they wonder whether it’ll be possible, under their circumstances, to get a continuance of the court date.
I was only just served! Can I get a continuance in my Virginia divorce case?
It always depends on the circumstances, but in a case like I’ve just described, it probably will be possible to get a continuance. It would be very difficult to be served with a court date in a week, and to have enough time to both hire an attorney and have the attorney be prepared for the hearing. Though a week may seem to you like it’s enough time for the attorney to prepare, it really all depends on what else is on his or her calendar at the time, and whether they even have the time for the hearing available on their calendar.
Most of the time, when attorneys schedule hearings, they check with opposing counsel to make sure that they have the date available before they commit to a date. In your case, because you didn’t have an attorney at the time the date was set, there was no one with whom to confer regarding whether the date would work for both parties and their counsel. It may be that your attorney already has that date booked to represent another client in another case, in the same courthouse or potentially an entirely different one. A lot of times, when it comes to family law cases, there are days that are more or less busy. In Virginia Beach, for example, Friday mornings are a huge court day for family law attorneys—so if you come in a week ahead of time, chances are pretty good that your attorney already has something pending in the Virginia Beach court, and may not be able to attend your hearing.
That’s not reason to worry, though. It’s not unusual at all that with a week’s notice it would be difficult to find someone, and I think chances are fairly good that if you go to court you’ll be able to convince the judge to give you a continuance. If you’re able to manage hiring the attorney before the court date, your attorney might appear—but that’s not necessarily going to be more beneficial than you appearing yourself and asking for a continuance.
Is it easy to get a continuance in my Virginia divorce case?
In a case like I’ve just described, it is usually fairly easy to get a continuance. But there are lots of other types of cases and different situations where it probably wouldn’t be as easy to get a continuance.
If you weren’t just served, but you didn’t do anything about it and didn’t hire an attorney until the 99th hour, you might find that the judge is less inclined to be sympathetic. You can’t be the ostrich burying your head in the sand; well, I guess you can, but there’s a chance it’s going to come back to bite you later. You have to remember that the judge has to balance the interests of both parties; it’s going to be expensive and time consuming for the other party to come back again later after a continuance is granted, and judges are sympathetic to those types of issues. They’ll usually look carefully at the situation to see whether a continuance is warranted out of fairness to one party, or whether it would be unduly prejudicial to the other party. The more you’re in the wrong (by not being proactive or hiring an attorney when you had a chance), the less likely you are to get a continuance—though it could still happen.
Really, when you get in front of a judge, anything can happen. But there’s no doubt that if you go in hoping for a continuance, you could find yourself facing a case unprepared if the judge doesn’t rule in your favor.
Ideally, the best thing you can do is get moving as quickly as possible after you’re served. By meeting with an hiring an attorney, even if the attorney isn’t available on such short notice, you’re taking steps that will help ensure that your motion for a continuance will be granted.
Will my attorney come with me to make my motion for continuance?
That all depends. If your attorney isn’t available, she won’t be able to be there, even if you’ve already paid to retain her. That being said, though, if all you’re planning on doing is making a motion for a continuance, you might be better off without your attorney there! (Provided, of course, that, in your case, a continuance is likely.) You’ll save the money you would have paid to have her there (money that, frankly, might be better spent on something substantive), and you’ll probably find that the judge is sympathetic to you, especially without your attorney.
You can tell the judge that you’ve hired an attorney and that she just wasn’t able to attend, since the date wasn’t cleared with her and you were only just served recently. Without your attorney there (especially if you’ve already hired one) the judge is probably less likely to decline your request for a continuance. If your attorney is there, on the other hand, it might be easier for the judge to just order that the case move forward.
You should definitely talk to your attorney about your case, and the likelihood of the judge granting a continuance based on your specific facts. But, if your attorney tells you you’re fine to go on your own, trust her.
My attorney is just asking for a continuance. Can I skip the hearing?
No. Even if your attorney is just planning on asking for a continuance, you’re going to want to be in the courtroom. Chances are, the continuance will be granted (at least, given the facts I’ve laid out here), but if, for whatever reason, the judge decided to press forward with the case and you weren’t there….well, it’d be terribly prejudicial, and certainly not worth the risk.
You are welcome to ask your attorney if you can skip the hearing, but you’ll hear the same answer—no. You need to be there.
Continuances are granted all the time, much to the frustration of many litigants seeking a quick resolution of their cases (especially in divorce cases where support is an issue). Still, if you don’t have time to prepare for your case, or even to hire counsel to represent you, chances are good that a judge will be sympathetic and grant your request for a continuance. For more information, or to schedule an appointment with an attorney to discuss your continuance, give our office a call at (757) 425-5200.