A question every divorce attorney has heard countless times during their career. To put simply, a definite answer is impossible to give. This of course is not what individuals wish to hear when they set out to file for divorce, but the fact of the matter is that every marriage differs from the next. The divorce process involves many variables including state requirements, the county you live in, and the court or judge presiding over the case; however, one factor that we've experienced with a big influence on the length of a divorce is how effectively a couple works together on coming to an agreed settlement.
For the purpose of this blog and to best answer this question we must understand the actual process of divorce. If we look at divorce in a general point of view, it can be divided into two types.
- Contested Divorce
- Uncontested Divorce
Just by reading each name we can assume which one usually requires more time. When the filing process begins the divorce is marked as no-fault or fault-based. All states now have their own versions of no-fault divorce, New York was the last to pass one in 2010. A no-fault divorce is filed when either individual claims the marriage has deteriorated to an irreversible state over a period of at least 6 months. Before no-fault divorce laws were passed you could not file for divorce without proving that your spouse violated the marriage. A fault-based divorce is filed when a spouse is accused of one or more of the following:
- Cruel or inhumane treatment; physical, verbal, or emotional abuse.
- Three or more years of imprisonment or up to five years after release.
The information in this blog correlates with divorce laws in New York State. With that being said, let us begin with the general steps involved in the divorce process:
- Meeting with an attorney and filing the initial complaint. Once a petition has been filed through an attorney the spouse is given up to 120 days to serve their partner with the divorce papers which include the grounds for divorce, fault or no-fault; and a summons, which is the formal notice that the divorce has been filed. The summons and petition can be served together or separately. If the plaintiff serves a summons without the petition, the defending spouse has to respond with a Notice of Appearance within 20 days and the plaintiff then has 20 days to serve their spouse with the petition of divorce.
- Once the other spouse has been served they will have 20 days to respond to the divorce petition, which may also include their own counterclaims. If the defendant does have counterclaims, the plaintiff will have 20 days to respond to those.
- Both spouses must attend a preliminary conference to determine the schedule for discovery. The discovery process involves the exchange of information on any disputed issues and finances. Depending on the intricacy of finances and assets the court may schedule a compliance conference to evaluate the progress of the discovery, which could add months of time to the process.
- The next step begins a negotiation process. This is the beginning of settlement discussions between the spouses and their attorneys. If a settlement can be agreed upon at this time the divorce can be finalized without going to trial and the process is dramatically shortened, not to mention the money that is saved.
- If a settlement is not reached during the negotiation process the court will schedule a pretrial meeting to evaluate what is expected to happen at trial. This is the last opportunity the couples are given to agree on a settlement and refrain from going to trial.
- At this point the court will schedule a trial to finalize the divorce. A judge will examine the arguments from both sides and determine a final settlement.
A contested divorce involves two spouses that cannot come to an agreed settlement involving property and asset division, spousal support, and/or child support and custody. Conflicting demands from each side usually make this a very long process. Spouses in a contested divorce have likely been disputing long before the divorce was filed.
A divorce is uncontested when the couple has agreed on the grounds for divorce and have reached a settlement agreement without going to court. The couple, with their attorneys, have put together an equal document stating the terms of the divorce including the property division, spousal support, and/or child support and custody. This process is notably smoother because the couple has reached an agreement privately themselves or through a legal mediator. Generally an uncontested divorce can proceed with three steps:
- The petition for divorce is initiated with the court and served to the spouse.
- The receiving spouse can waive the waiting period and formal service of the petition to have the matter scheduled for a hearing.
- The court will schedule a hearing to review the settlement and finalize the divorce.
In New York an uncontested divorce can range from 4 weeks to a year depending on spousal cooperation and your county's regulations. Contested divorces can be very unpredictable ranging from 1 to 5 years depending on circumstances. The bottom line is that variables like courts and judges that a couple will deal with are uncontrollable, so the more a couple is able to cooperate with each other during this tribulation, the quicker they can end it. The attorneys at HALL, RICKETTS, SCHULLER, & GURBACKI have been serving the Buffalo area for over 80 years and have the experience you need to make this difficult process go as smoothly and quickly as possible. Contact us today for help with any questions or concerns you may have. Thank you for choosing the trusted attorneys at HALL, RICKETTS, SCHULLER, & GURBACKI.