In our last post, we learned the “language of divorce.” The next step is learning how the divorce process works. Timelines and schedules matter, and failing to meet deadlines can jeopardize what you are trying to accomplish. To avoid pitfalls, it is important when speaking to your lawyer to understand what the timelines are, not just for your case but also how the case fits into your everyday life. While a hearing may only last an hour, the preparation for that hearing, getting to and from the Courthouse, attending the hearing, and communicating with your lawyer will take much more time. This is time being spent away from your normal routine. So, understanding the timing of the process will help assist you in balancing your case with the rest of your activities.
While the actual timeline for your case may vary, you can expect the following at the outset:
1. Complaint/Answer: Once the Complaint is filed, the other party has 21 days to file an answer. In most cases, a divorce cannot be finalized until the couple has been separated for a least a year. Even so, do not expect to have a final decree of divorce on day 366.
2. Discovery: Assuming you and the other party are not in agreement, lawyers want to conduct discovery to identify all issues, witnesses and exhibits before proceeding to a hearing or trial. No one like surprises, and discovery can be extensive depending on the issues. When discovery issued, the opposing party has 21 days to respond. If they do not meet this deadline, you can go to the court and get an order compelling them to answer. If this occurs, the party asking for the order can be awarded attorney’s fees. So, it is important to meet these deadlines.
3. Settlement/Mediation: Once discovery is completed, issues/evidence are identified, and strengths and weaknesses assessed, settlement negotiations or formal mediation can be productive. We believe discovery should be completed first so we can avoid the issue of the unknown. Guessing what a house is worth, how much is in a retirement fund, or what a counselor will say regarding children, is difficult. It is best to have that information before beginning negotiations. In most of the jurisdictions where we practice, a mediation is required before proceeding to trial.
4. Hearings: Courts differ as to scheduling, not just from Judge to Judge, but also depending upon current caseloads. If an issue needs to be addressed before trial (getting a temporary order or enforcing an order) a motion hearing can, normally, be held within a few weeks. However, hearings can be continued while the issues are discussed and offers of settlement reviewed.
5. Trial: Sometimes there is a reluctance to schedule cases for trial. Judges and counsel want to assume cases will settle, and hopefully they will. But settlement cannot be guaranteed, and as discussed previously, it is best to set a trial date and not need it, then hope for settlement only to end up scheduling a trial months after the date you could have had. Being proactive and asking for a trial date early can help in getting a date set, even if it is nine months away.
Your lawyer needs your help. The more help you provide, the better your case will be prepared, and the more you will save in fees and costs. Being proactive in providing information to your lawyer makes it more likely the above timelines can be met. In our practice we find clients to be the most helpful by:
- Providing documents – Your lawyer needs documents from you. Those documents may be bank statements, tax returns, school or medical records for children. Without the documentation the lawyer will not have all the information and will not be able to give you good advice, so provide it early in the process.
- Reviewing documents – Once you provide information the lawyer will begin preparing documents for your case. It will be very important for you to review the documents to be sure they are accurate and respond timely. If there are errors, then make sure the lawyer knows about them and corrects them before filing with the court or sending to opposing counsel.
- Providing exhibits – If you are proceeding to a hearing or trial you and your lawyer will need to prepare exhibits to support your position on an issue. Different issues require different exhibits, but all the exhibits will either come from you or from information you provided. The sooner you can provide information, the better prepared your lawyer can be.
- Contacting witnesses – Once you identify witnesses, especially if they are family or friends, contact them to make sure they know they may be witnesses. The lawyer will contact professionals (appraisers, accountants, counselors, etc.) but witnesses that you know personally should hear from you first. Make sure they are available for a hearing or trial, and letting your lawyer know if they are not.
Divorce is a long and slow process; the stress of the situation will make it seem even longer. Take a deep breath, know that this too will come to an end, and be proactive in moving your case forward. Nothing is done best in haste, and a well-prepared case, even though it will take time, is the one you want to present to the Judge. Rushing to get to the courthouse without fully developing the evidence is a mistake. Judges do not want to make important decisions without knowing all the facts possible. Make sure you and your lawyer take the time to develop your case and give the Court all the facts. To that end, it might be best to consider setting aside some time in your schedule specifically to address your case. That might be daily at first, then weekly, but making sure you have time to accomplish a task is the first step in competing the task.
Our job is to shepherd you through this difficult and time-consuming process. We want to make sure you understand your rights and responsibilities so you can make the best-informed decisions regarding your case.
Richard E. Garriott, Jr. is a member of the Virginia Beach law firm of Garriott | Maurer, PLLC, where he handles a full range of family law matters, including divorce, child custody, property settlement and premarital and postmarital agreements. Mr. Garriott accepts clients throughout southeastern Virginia.
Mr. Garriott is a Fellow in the American Academy of Matrimonial Lawyer’ s, a fellow in the International Academy of Family Lawyers, as well as a Fellow In the Virginia Law Foundation and the American Bar Association Foundation. He was also named as a member of the 2009 class of Virginia’s Leader’s in the Law. Along with the top rating of AV Preeminent* from Martindale-Hubbell, he has been included in The Best Lawyers in America** and was selected by Virginia Business magazine in since 2011 as one of Virginia’s Legal Elite in the family and domestic relations category. He has been included in The Best Lawyers in America since 2013. He has been named as one of Virginia’s Top 100 Lawyers by Superlawyers since 2015.
Mr. Garriott is a member of various bars and associations, including the Virginia Family Law Coalition and is a Past President of The Virginia Bar Association. He is active in the I’Anson-Hoffman chapter of the American Inns of Court. Having a strong belief in giving back to his community, Mr. Garriott donated his time on the advisory boards for the Mission of the Holy Spirit Shelter and the Seton Youth Shelter to help inner-city families and at-risk youth, and served as Chairman of the City of Virginia Beach Board of Zoning Appeals.