How to Get a Continuance in Virginia Family Law Cases
If you have a court date coming up and you’re hoping to get a continuance, you’re not alone. Court dates are complicated; the clerk’s office won’t call and make sure you don’t have any scheduling conflicts before setting a date. They don’t care whether you will have had enough pay periods between now and then to afford to retain an attorney. They set a date, let you know, and that’s it.
I find, too, that women feel confident that they can represent themselves, but then, as the hearing gets closer and closer, their confidence erodes. They suddenly want to talk to, or even hire, an attorney – but now there’s very little time remaining before the hearing date.
As you probably already know, many court appearances require pretty extensive preparation. It’s not like you just show up in court on the day of your hearing, with or without an attorney, and that’s all there is to it. There are many different types of court appearances, hearings, and trials in family law cases, and different amounts of preparation are appropriate depending on what, exactly, is being handled in your case on the day in question. (Sometimes, when I talk to women, they aren’t even sure what type of hearing it is, how much time is available on the docket, or what issues are being addressed!)
Whether you were hoping to handle it on your own, haven’t felt you had a sufficient amount of time to find and retain your own attorney, recently discovered something that makes you feel like it won’t be as easy as you thought, or whatever the case may be, it’s entirely normal that your feelings about what and how much you can handle changes as your hearing or trial date approaches.
So, you start thinking about a continuance.
Can I get a continuance in my family law case?
Continuances are tricky. In some cases, it seems like things are forever getting continued. In other cases, it’s more difficult to get a continuance granted. Ultimately, it comes down to the judge, which accounts for all the dissimilarities between different cases. It is in the judge’s discretion to either grant or deny a continuance, which he or she can do (or not do) for about a million different reasons. Mostly, in either case, either granting or denying a continuance ultimately comes down to a sense of “fairness” – in the judge’s opinion, anyway, which may or may not seem fair to you.
Getting a continuance by agreement
If you have enough time, you may be able to get opposing counsel to agree to a continuance. I’ve seen it done where an attorney is hired – with the proviso that the continuance must be granted, in order to find a date (1) there the attorney is available and/or (2) where the attorney will have had enough time to adequately prepare for a hearing.
Sometimes, in cases like that, your attorney will attempt to reach out to opposing counsel to secure the continuance, or they’ll expect you to go to court with a letter of representation, stating that he or she is willing to take the case if a continuance is granted.
The judge will usually ask opposing counsel for his or her position regarding the continuance and, if there’s agreement, will often grant the continuance. If opposing counsel contests the continuance, though, you’ll have to argue it.
What happens if I have to argue for a continuance?
I get it. Oral argument is scary, especially if you’re going to court without an attorney there to help present your case to the judge. Now that you’ve decided you want an attorney, the thought of going in there and speaking up for yourself is probably pretty terrifying.
But, take a deep breath. You didn’t go to law school. You’re not a lawyer. And the judge isn’t expecting you to be. You don’t have to be perfect. You just have to be as calm as possible, and able to articulate your points.
It is totally fine if you make notecards, have a bulleted list of points to make, or print off a piece of paper with your statement, and then read from it. You aren’t getting points on your oral presentation. You are just trying to get your main points across. It’s okay if you stammer, or stutter, or your hands shake! It’s okay if you read verbatim. You don’t get points for showboating.
Just tell the judge, in your own words, why you need a continuance. Explain the issues you’ve come up against, the steps you’ve taken to overcome them, and the reason you need a little more time to prepare.
This is my first request for a continuance.
The judge will be concerned about the amount of prejudice to one party or the other. As you can imagine, preparing for court isn’t easy for anybody. Especially if you’re pro se – meaning that you don’t have an attorney representing you – -the judge may be more accommodating than he or she would be if you had an attorney with you on the day of the hearing.
That’s one thing we often tell people who have court coming up soon. We often can’t just show up and ask the judge for a continuance. He or she will say, “Well, counselor, you’re here, so we may as well have the hearing.” That’s different from how they’ll act to an unrepresented person. Often, I find that unrepresented people attending a hearing alone are given more leeway, especially if your husband or child’s father IS represented by counsel, and you tell the judge you need a bit more time to find an attorney.
Judges want parties to be represented by counsel. It’s a way of ensuring that both parties have an opportunity to present their case effectively, which helps judges do a better job (and run less risk of getting overturned on appeal, which they also like to avoid).
This is not my first request for a continuance.
There aren’t really hard and fast rules about how many times a judge will grant a continuance, but I think – in general – you should assume that it’s a courtesy that will only be extended the once. You probably won’t be able to ask, for a second time, for more time to prepare for a hearing, or even more time to find and retain an attorney. Barring some pretty exceptional details, I am doubtful that you’d be successful.
Think about things from the perspective of the other party. Especially if he or she has hired an attorney already, and they have shown up to court prepared to argue the case, it’s going to be seen as pretty prejudicial to continue the case again. It’s common that we prepare for a hearing and go to court only to settle – which is frustrating enough for a client – but it’s even worse to prepare (and pay an attorney to prepare) for a hearing that keeps getting continued because of an opposing party who hasn’t done his or her due diligence. At some point, you won’t be able to do this. It’s probably unwise to attempt it a second time.
Ultimately, all you can do is ask. Though, in general, I see judges be pretty flexible with pro se litigants, there are never any guarantees. If your attorney is unavailable on the date of the hearing, or unwilling to represent you without having more time to prepare, though, there’s really very little else you can do.
If your attorney can’t appear on the day, though, it’s a good idea to use some of the time in your initial consultation to ask the attorney what she thinks you should say to the judge to secure your continuance – and even ask if she will give you a letter to present to the court. A letter of representation (basically, just saying that the attorney intends to take the case if the continuance is granted) can be helpful. It at least tells the judge that you’re not someone who wants a continuance to “hire an attorney”, but will turn up next time with some other problem instead – or even show up pro se! (Hey, it happens!) Your attorney might also be able to give you a list of available dates – or unavailable dates – so that the judge can set the hearing on a date that works for her.
Of course, when it comes to court, there’s a lot you should know. Consider reading up on what to wear to court, how appeals work in circuit court and juvenile court cases (just in case!), and what different types of hearings you might face in a divorce or custody case. The Virginia courts aren’t perfect – no court system is – but it’s the system you have to work within, so you may as well learn as much as you can about it before your hearing date.
For more information, or to schedule a consultation with one of our attorneys, give our office a call at 757-425-5200.