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This article is PART TWO of a two-part series shedding light on some of the realities that can prolong the divorce process. Part One focuses on the pre-court/mediation phase of the process. PART TWO describes the court phase.
The Need for Temporary Resolution. Many of the legal issues that arise early in the divorce process will need a temporary resolution. For example, a dispute over the custody of a child during the separation phase will need to be addressed before a full trial can happen. Securing court dates for non-emergency temporary matters can take upwards of a few weeks or months, depending on the caseload of the court where the case is pending. For this reason, attorneys usually schedule temporary hearings before the information gathering phase is even complete, particularly in situations where a parent is being denied access to a child.
Time to Mediate. After the informal information gathering and any discovery processes are complete, attorneys typically encourage the parties to participate in mediation to try to settle their disputed issues out of court. Court rules make mediation mandatory on some of the disputed issues. It may be 30-60 days from the point at which the parties agree to mediate, and the attorneys believe the case is ready for mediation. Adding to this is the task of coordinating a mediation date that will work for everyone involved. Good mediators have full schedules, and because they are attorneys, they have cases to handle separate from their work as mediators.
Court Availability. If mediation is unsuccessful, or once a case otherwise appears to require a court hearing, the next step involves scheduling a court date. Depending on the length of the trial time necessary, the court might not have available the requisite court time for a few weeks or even several months. Litigants who reside in less populated geographical areas encounter delays because courts in those areas might not hold court as often. Courts are commonly overwhelmed with the volume of domestic relations cases, which prevents them from handling them as quickly as litigants, attorneys, or the judges would prefer.
Court Delays. Furthermore, placement on the court calendar is no guarantee that the case will be heard on that date. In many geographical areas, the court calendar contains more cases than court time available. When this happens, the court has no option but to postpone the case. Judges may delay a case for other reasons as well, including illness, inclement weather, or unavailability of witnesses. Often the parties and attorneys acknowledge that postponing the trial of a case is appropriate and agree to do so. When this happens, the process of setting a new court date has to start all over again. In Wake County, North Carolina, for example, for trials only requiring a few hours or less of court time, a new court date might not happen for weeks or months into the future. Trials that require a day or more might be postponed for nearly a year or longer.
Noticeably absent from this article is a definitive timetable for the progression of a divorce case. I also omit the process by which attorneys and staff organize and use the documents and information obtained to prepare the case for trial. Because so many circumstances arise in a case beyond the control of the client or attorney, forecasting how long any particular case might take is a challenge. However, an attorney can provide the client with an estimated timeline and what to expect along with the way.
Max Rodden is a North Carolina Bar Board Certified Family Law Specialist and has been practicing family law since 1991. He represents clients in all aspects of family law, and has extensive trial experience at all levels of North Carolina courts including district, superior, special proceedings, juvenile, small claims, administrative proceedings, the Court of Appeals and the Supreme Court....LEARN MORE