THE BLOG
04/01/2013 12:12 pm ET | Updated Jun 01, 2013

Maintaining An Active Tempo In Your Divorce

"How long will it take to divorce my spouse?" It's one of the first questions asked by individuals seeking to end a marriage. Interestingly, the tempo by which a litigated divorce case progresses is often dictated by the attorneys, not by the actual litigants. In contrast, the tempo by which a mediated divorce progresses is entirely in the hands of the parties themselves.

It's been said that divorce is a process. Divorce is a tedious, arduous, and typically unpleasant process. It is affected by many external factors, including the parties' relationship with each other, the attorneys' relationships, and the degree to which friends and family become involved. It is, therefore, critical to have an understanding of the process before committing to a particular path.

The process of a typical litigated divorce may be summarized as follows:

  • Identify and engage legal counsel, sign retainer agreement, and... wait for initial documents to be drafted
  • Determine your jurisdiction, that is, the state in which the matter will be heard before a court.
  • ile Summons and Petition (for Dissolution of Marriage) and formally serve the documents on the opposing party, identifying the nature of your claim and the relief you are seeking... wait 30-45 days for response.
  • Respond to Answer and/or Counter-Petition from opposing party... wait 30-45 days.
  • File motions, for example: Motion for Temporary Attorneys' Fees, Motion for Temporary Custody, Motion for Temporary Support, Motion to Prevent Dissipation of Assets
  • Hold hearings for motions... wait 30+ days.
  • Do court-ordered mediation (in states which require that the parties attempt to mediate all or part of their disputed issues before submitting them to the court)... wait 30+ days.
  • Co-parenting classes are often required in cases where children are involved, to teach parents how to minimize the impact on children involved in a divorce... wait.
  • Case management conferences... wait.
  • Discovery is conducted to investigate those contested facts, which are often the central focus at issue in a case. This can be accomplished the hard way (formal written discovery) or the easy way (both parties mutually agreeing to full disclosure)... wait months and months.
  • File Motions to Compel relating to failure to provide discovery or for providing incomplete responses to requests... wait.
  • Hearings on pending discovery requests... wait.
  • Expert Review is often necessary to sort out facts that cannot be jointly agreed upon by the parties... wait.
  • Settlement discussions may be had at any point up to and including during the trial, and the parties are encouraged to attempt to resolve their issues without court intervention... wait.
  • Settlement Conference/Pretrial Conference is often used (again) to encourage settlement on all or part of the issues, and set for trial those issues, which cannot be resolved between the parties... wait.
  • Trial is typically 1-2 days, depending on the complexities of the case, and affords each party the opportunity to tell his/her side of the story... wait.
  • Appeals must be timely filed by the party (or parties) who disagree with the final judgment by the Court... wait.
  • Modification of prior agreements or judgments may be made if there is a substantial change in circumstances... wait.
  • The process may be started all over again.

Clearly, the litigated divorce takes significant time. And time equals money. Money not only in disputed alimony payments or modifications to child support, but money in legal fees and costs, which increase exponentially with each delay, each emailed "nasty-gram," each communication with opposing counsel. Most of the steps above don't happen all at once. Responses to discovery will often stay in a holding pattern, while waiting for the court to rule on a particular motion. This slows the process down considerably, while fueling the parties' frustrations at each other, at their attorneys, and at the system, which is ill-equipped to manage these types of disputes.

Contrast the above with a typical mediateddivorce:

  • Identify and engage a certified family law mediator, sign engagement letter, and schedule initial consultation
  • Determine issues requiring resolution, setting aside all agreed-upon items, and focusing on the areas of dispute;
  • Exchange all mandatory disclosure documents (this process is in lieu of the formal discovery procedures);
  • Draft mrital settlement agreement
  • If needed, many family law mediators will also prepare all of the requisite accompanying documents needed to effectuate the divorce (for example, parenting plans, child support. worksheets, etc. etc.)
  • If children are involved, recommend co-parenting classes, which are required in some states, to teach parents how to minimize the impact on children involved in a divorce.
  • Execute all final documents and file with the court.
  • Attend court hearing for final disposition by judge.

While the mediated divorce also takes time, effort and money, it is controlled mostly by the parties themselves, not by the attorneys and court system. It is the parties who determine the parameters of the settlement agreement, as opposed to the court imposing its decision upon the parties. So, in a society pressured for time and money, doesn't it make more sense to mediate?