United States: Is Divorce "A Long And Winding Road?"

Last Updated: November 18 2013
Article by Robert A. Epstein

Keeping with the Beatles theme from earlier last week ("8 Days a Week" of Extracurricular Activities), one of the most common questions asked during the initial divorce consultation is "how long is this going to take?"  It is essentially the equivalent of my kids asking "Are we there yet?"  I want to give them an answer that actually means something, but all I can usually tell them is "No, we aren't there yet...it depends on traffic, how fast we are going, how many times I have to pull over to a rest stop so that you can go to the bathroom, how many times your baby brother is going to make me want to pull over to a rest stop because he won't stop screaming, etc.).

I used the name of the Paul McCartney-penned Beatles song in the title because, when he paid former spouse Heather Mills $235 million to settle their 2006 divorce case, he indicated that he did it, in part, to preserve his health.  According to reports from that time, Sir Paul's kids told him, "If this goes on, it could kill you. Being happy is more important than money."  Ultimately, that is easy for Paul to say with bottomless pockets to work with, but the sentiment is well taken.

So how long will your divorce case take?  A number of factors come into play including, but not limited to:

1. Is there a business to value?

Cases that require a business valuation inevitably take longer.  Generally, each side has retained his or her own expert, each expert has their own set of requests and document requirements, each expert works at their own pace, etc.  Some businesses are more complex than others, and some cases involve business owner spouses who simply do not want to give everything being asked of them, whether he or she is trying to hide something or otherwise.  The owner spouse will accuse the non-owner spouse of engaging in a discovery fishing expedition, which will only heighten the non-owner spouse that something may be lurking beneath.  Also, if the two experts are far apart in their ultimate values, the court may appoint a third expert!  Aside from the fact that forensic accountant experts are generally very expensive, a third expert will only take longer.

2. Is there a custody dispute? 

Litigating cases with a custody dispute is sort of like stepping into a third dimension.  All of a sudden, everything that parents did during a marriage is foisted under the strictest microscope possible.  Did daddy do homework with the kids tonight during his parenting time?  Did mommy say something about daddy?  Does a letter have to be sent to the other lawyer or even the custody expert to show that daddy's house is either too small or really messy and, according to mom, not a place to house children?  The possible issues are – truly – endless.  With that comes the custody evaluation process.  While most cases seem to involve a joint expert, or a court-appointed expert, rather than each party obtaining their own expert (unless the first report comes out and one parent is unhappy with it, at which point he or she may retain an entirely new expert as is permitted by the Rules of Court), the process is still costly, and still can take months depending on the expert involved.  I recently had a judge appoint an expert in June and her report was done by November – only six months (otherwise known as "ludicrous speed").  In another matter where the judge appointed the expert last November (2012), we are still waiting for the report!  Judges will often order that the report be expedited, but that word often has no bearing on the actual result.  Why?  Custody experts are oftentimes balancing many cases at once, have to conduct several meetings with the parties and children, and then have to write the report.  It takes time, simply put.

3. How agreeable are the parties?

Are you going to fight over every single issue no matter how small?  Are you going to work with each other towards a resolution with as minimal an expenditure of counsel fees as possible?  Ultimately, it is all up to, including whether to have a forensic accounting expert value a business (or perform some other task) or have a custodial expert issue a best interests analysis.  When potential clients come in for a consult, I answer the "how long is this going to take" question with, "it depends, in part, on the two of you."  Along with that comes the lawyers – i.e., what lawyer was retained in a specific case, and what reputation for litigating/or not litigating does that attorney carry with him or her.

4. How fast is the Court system? 

Well....to put it simply, not typically very fast.  With hundreds of cases and a shortage of judges, it will take months, if not years for your case to start a trial.  Depending on the county, it could take two years, three years, or even more.  This is where #3 comes into play – if the litigants can be agreeable, you will not have to wait for the window when the trial judge can finally try your case.  Rather, you can be on your merry way.

There are so many more reasons why you may be proceeding down the "long and winding road," in litigation.  It largely depends on you and your spouse, however, to see if you, like Sir Paul once sang, "can work it out."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Robert A. Epstein
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