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Thursday, September 29, 2011

How long does it take to get Divorced?

The length of time between the beginning of a divorce case and the completion of the case varies greatly. The shortest amount of time it can take you to get divorced is about 5 months, while the longest can be years (my longest case so far was almost 6 years). The variation is mostly due to how you choose to resolve your divorce case, and how much you and your spouse disagree about the division of assets or custody of children.

Variation due to Type of Case: Private Resolution v. Court

You and your spouse can resolve your case by settlement out of court in three primary ways:

  1. Direct Negotiation: Either directly with each other, or though counsel, you and your spouse can negotiate a divorce settlement without going to court. If you can reach an agreement on all issues, then you will still have to present a written agreement to the court which details your agreement.
  2. Collaborative Divorce: If you cannot negotiate directly, and want to use counsel, the Collaborative Divorce process allows you to negotiate with an assurance that your attorneys are also committed to out-of court settlement (because they agree not to go to court as part of the Collaborative process agreement). The goal of a Collaborative Divorce is also to result in a written agreement which is then presented to the court for approval.
  3. Mediation: Mediation is a process that allows you to negotiate directly with your spouse, but still have the assistance of a neutral person to help provide information about the process and referee disputes. The goal of a mediation is also to result in a written agreement which you present to the court for approval.

In all of these scenarios the agreement is filed with a Joint Petition for Divorce under Section 1A of M.G.L. c. 208. The Court will set a date and time for an uncontested divorce hearing. In most cases, both you and your spouse must attend the uncontested divorce hearing and testify under oath that your marriage has suffered an irretrievable breakdown. The Judge will then issue Findings of Fact and if the Judge finds that your marriage is irretrievably broken down, then a Judgment of Divorce Nisi will issue after thirty (30) days, and it will become Absolute after a further ninety (90) days.

This means that if you file a Joint Petition for Divorce you are not legally and officially divorced until 120 days after the divorce hearing date.

Total Time to Get Divorced = Time to Settle + Hearing Date Waiting Period (20-30 days) + 120 days.


Court Resolution:

Under Section 1 or 1B of M.G.L. c. 208, if only one person in the marriage is ready to tell the Court that the marriage is over, or if you cannot agree with your spouse on other issues related to the divorce (such as the division of property, custody of children, amount of support, etc.), then you must file a Complaint for Divorce. The Court has time standards that govern the range of time that your case should take to get from filing to trial. Time standards requires that a case be heard within 14 months, but application of these standards varies and if discovery takes longer than usual then you may not be heard within 14 months.

If the parties are unable to settle their divorce case, then at the end of discovery a trial will be held, and after reviewing both parties' proposals and the evidence, the Court will issue a Judgment of Divorce Nisi and it will become Absolute after a further ninety (90) days.

Total Time to Get Divorced = Time between Complaint for Divorce filed and Settlement or Trial Date + 90 days.


Variation due to the length of the FIGHT:

Whether you settle or go to trial your case will take longer if you make it difficult for the other person to obtain information or if there are complicated issues. When settling out of court you control how quickly your case moves based on how quickly you provide each other with information and how quickly you reach agreements.

The divorce process in court can take much longer because when disagreements arise, you must wait for the court's schedule to allow for resolution. At the very least, absent an emergency, it usually takes at least a few weeks to get into court, even just to deal with one contested issue. Furthermore, court is often delayed by discovery issues that require more time, such as business valuations or custody investigations.

What is the average length of time these issues take?

A simple case, with only some contested issues, will still typically take 8 months to 1 year to settle through court. Through mediation or collaborative divorce, a simple case will usually require 2-3 meetings, which typically takes 2-3 months to resolve.

A complicated case or a case with numerous contested issues will obviously take longer. On average these cases still resolve through court in 1-2 years, but can go longer. Through mediation or collaborative divorce, a complicated case will require more meetings but will still likely be shorter than the court process.

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