Continuances in Virginia Divorce
Divorce is inconvenient. And, sometimes, depending on the circumstances, it can also take a really long time. There are often delays that we can help. In other cases, it’s our side who is responsible for the delays, for any number of reasons. Continuances happen in Virginia divorce – they just do. Whether we ask for a continuance, or whether the other side is asking for a continuance, in many cases, especially litigated cases, continuances happen.
Right now, continuances are kind of at the forefront of my mind because of a particular case I’m handling. It’s so frustrating! I scheduled a hearing several weeks ago, and I sent notice to the attorney on the other side. Long story short, she had originally picked the date, and I was only trying to add another point on for the same day – but the other attorney removed her hearing before I could formally get mine noticed. Several weeks later, days before the hearing date, the other attorney decides to tell me she isn’t available on the date she originally selected. By that point, of course, I had begun to prepare, and I had asked my client to make arrangements to take off of work to be there. In this particular case, my client lives out of town, and had to make arrangements not only to not be at work, but also to travel to the city where her hearing was to take place.
Now, technically, the way it works is that attorneys are supposed to clear dates with each other before hearings are set, as a matter of professional courtesy. That doesn’t always happen, though – like, in this case, I was trying to add a hearing to a day where there was already a motion pending. In other cases, the attorney on the other side is completely unresponsive, and we have no choice but to go ahead and set a hearing, with or without input from the other side. The rule is just that we have to send notice more than 7 days before the hearing date – but, as you can imagine, such short notice can often pose problems, so attorneys often DO provide notice well in advance of the 7 day requirement.
What if opposing counsel tells us she can’t be there for the hearing – even if it was properly noticed?
For practical reasons, when the other attorney has a conflict and can’t be there, we DO often agree to move the hearing. Though that is annoying for our clients, we have a number of reasons for doing it. Even though our client has probably made arrangements to be present for the hearing (and, in some cases, even purchased plane tickets!), we don’t want to make the situation worse.
Consider this… So, if the hearing is continued, you will have to get another hearing date. That might mean you need to buy another set of plane tickets, request off work again, and generally alter your schedule to be available. Yet again.
Trust me, I KNOW how frustrating this is. (And it’s often frustrating to your attorney, too, because she has ALSO made plans, cleared her schedule, and not taken other appointments in order to be present for your hearing.)
If the hearing is not continued, though, and you go to court, but the other attorney can’t be present…
Well, that’s risky, too. Sure, the judge COULD, theoretically at least, move forward without the other attorney present. It all depends on the facts, of course, but it’s also possible (and in many cases, probable) that the judge would be uncomfortable moving forward without the other attorney, and postpone the hearing anyway until a date could be set where the other attorney would be able to be present.
It’s mostly out of fairness to the opposing party; the judge doesn’t want to disadvantage that person because their attorney isn’t able to be present (particularly if both attorneys didn’t confer on the date chosen).
But think about it then… Okay, so you would have used your flight, or your paid time off, and made the trip as planned for the hearing as scheduled. But it’s possible that you could do all those things and then STILL find that there’s a delay. And then you’ve traveled. And you’ve actually taken off work. And you’ve paid your attorney to appear. And your attorney will have to appear AGAIN for the actual hearing. It can REALLY add up – both logistically AND financially.
Can I refuse to allow my attorney to grant a continuance?
Yes. It happens sometimes. I’ve had a case before where I had to tell the judge that, even though the opposing attorney had a good reason to ask for a continuance, my client wouldn’t agree to it. Ultimately, the judge is the decision maker, though, so he can order a continuance over my (and my client’s) objection.
Can you just get a million different continuances and drag the case out forever?
No. Judges don’t like continuances, especially repeated continuances. At some point, a judge will say that too many continuances have been granted, and refuse to continue to allow them. A lot of times, we run into requests for a continuance in a case where the opposing party hasn’t hired an attorney. They can often go into court and say that they haven’t had a chance to retain counsel yet, and the judge will continue the proceedings. (It’s risky, though, because the judge won’t ALWAYS do anything.)
That excuse will only work once, though. If they haven’t retained counsel by the next hearing, the judge won’t listen to the same excuse again – chances are, the hearing will proceed as planned at that point. An infinite number of continuances won’t work. At some point, a hearing will be held. You can try to avoid it (or your husband can, if he’s the one slowing up the works), but eventually it’ll happen.
I know how frustrating it can be to have a hearing date scheduled and continued a number of different times, but there’s often not much we can do to avoid it. A lot of times, we’re a little extra cautious where continuances are concerned because we don’t want to put ourselves in a situation where the judge orders it anyway, and then we’ve inconvenienced the client and accomplished nothing. We’re very sensitive to the cost involved in a divorce or custody case, and appearing on a case where the judge will just order a continuance is even worse for the client than the inconvenience of a changed date. For more information about continuances, or to schedule an appointment with one of our attorneys to discuss your particular case, give our office a call at (757) 425-5200.