HOW LONG DO I HAVE TO WAIT BEFORE I CAN GET DIVORCED AND HOW LONG WILL A DIVORCE TAKE?
The decision to dissolve a marriage is rarely an easy choice to make. The law, however, is designed to ensure the parties seeking a divorce have thoroughly considered their decision and the most just outcome is reached. This is accomplished by various waiting periods in the procedure. Additionally, the law will impose additional periods to time to allow opposing parties to respond and for the limited judicial resources to hear the matter. Below is a rough timeline of what will happen and when it will typically happen.
Filing For Divorce (At Least 60 Days Of Residency By One Spouse) Divorce is begun by filing a Petition with the court requesting that the marriage be dissolved. There is no minimum amount of time a couple must have been married before a spouse files his or her Petition. However, certain considerations should be looked at when a marriage of under a year is being ended. First, certain reasons allow for a marriage to be annulled, which may move faster than a divorce through the court. Annulments must be supported by a reason to invalidate the divorce, such as fraud by one spouse. To put it another way, all marriages may be ended via divorce, but most marriages cannot be annulled. Second, at least one spouse must have been a resident of Kansas for at least 60 days prior to filing the Petition. Keep in mind, the spouse living in Kansas does not need to be the spouse filing for divorce.
Service And Response (1–4 Weeks) Once a Petition is filed with the court, a copy must be served to the other spouse. This service provides notice to the other spouse that the divorce process has begun. Service can be accomplished in a number of ways, including paying the sheriff department to personally serve the spouse or to simply send the Petition via certified mail. However service is obtained, the filing spouse will have to submit proof of service to the court. The non-filing spouse has 20 days to file an answer to dispute any factual allegations made in the Petition. If the non-filing spouse misses this deadline, all factual allegations are considered admitted and agreed upon.
Cooling Down Period And Discovery (At Least 60 Days From Filing) Absent an emergency or unusual circumstances, the court will not set a hearing for a divorce Petition until at least 60 days from the filing of the Petition. This time is known as the “cooling down” period. If one party is not represented by counsel, the time is likely to be even longer than 60 days, because a hearing in front of the court will be required to finalize the divorce. The dockets of the court are usually backlogged, and the parties will have to wait for their case to be scheduled. If both parties are represented by counsel, have worked out a settlement agreement amongst themselves, and submit it to the court for review, a court hearing is not mandatory and a judge can sign the decree of divorce without hearing live testimony from the parties. How much longer this period is beyond the mandatory 60 days is difficult to predict. This extended period of waiting gives the parties an opportunity to attempt to work out the terms of their divorce through counsel. How this time is spent largely depends on if the divorce is contested—the parties disagree as to the facts alleged in the Petition—or uncontested.
In an uncontested divorce, this time is also used for finalizing terms of a settlement agreement and decree of divorce. These terms may include the amount of maintenance, a parenting plan, child support amounts, and division of assets and debts. If the divorce is contested, the first task is determining which fact are disputed. Then, discovery is conducted by both parties. Discovery may be conducted in the form of interrogatories (written questions that are answered under oath), requests for production of documents, and dispositions (live questioning similar to testifying at trial).
First Court Appearance The next step is the first court appearance by the parties. If the divorce was (and remained) uncontested, the parties likely have reached a full agreement and if both parties are represented by counsel, a hearing will likely not be necessary. However, if one of the parties is not represented by an attorney, a disposition hearing will be scheduled to finalized the divorce. If there are contested issues, and the divorce is not finalized, a status conference, which is scheduled when the petition for divorce is first filed, will need to be attended by the parties’ attorneys (or by a party if he or she is unrepresented). At this hearing, the parties will inform the court of the progress they are making towards a settlement. A pretrial conference will also be scheduled at this time. The hope is that the parties will have reached a settlement before a pretrial conference is needed.
Pretrial Conference (Varies Greatly, But Likely 2-6 Weeks From First Court Appearance) At the pretrial conference, the court will meet with the parties and their legal counsel. The court will require each party to disclose the remaining issues that will need to be heard at trial. A pretrial statement is required of both the parties and the court uses it to determine how long of a trial the parties will need to resolve their pending issues. During the time between the pretrial conference and the scheduled trial, the parties may continue to attempt to resolve some of the pending issues. If the parties are still unable to resolve all of their disagreements, the case will continue to trial.
Scheduling the pretrial conference may be the longest period of waiting in the entire process. The docket of the court will determine how quickly a pretrial conference and trial can be scheduled. Large populated counties will generally have large dockets, but also more judges to hear cases. It is difficult to predict how long a party will have to wait to find open time on the docket, even when considering a specific county.
Trial (Varies, Likely 2-6 Months From First Appearance And 2-5 Days After Pretrial Conference) Unresolved disputes are decided by trial. The trial is done by judge, never jury, for divorce proceedings. The judge will hear testimony from the parties, any witnesses, and experts, as well as accept other types of evidence. Using this evidence, the judge will reach determinations about disputed facts. He or she will then use the resolved facts, along with proposals by the parties, to create the terms of the divorce. Finally, the judge will issue an order granting the divorce and outlining these terms. At this point the divorce is final and the parties are bound by the terms of the dissolution order. It is possible to appeal the determination of the court if an error of law occurred during the proceedings, but this is rare and will generally result in a retrial rather than an automatic outcome in the other party’s favor.
Divorces take time. These are just the basic elements that are common in divorce proceedings. Each dissolution is different, and will follow its own timeline that may include other hearings and events not discussed here. It is important to discuss the timeline of a divorce with competent legal counsel. It is equally important to understand that this timeline is likely to change at various times as the proceeding works its way towards trial or agreement. A divorce can be accomplished within 60 days, or up to two years or more. The number one factor in how long your divorce will take is how many issues you and your spouse are able to work out in an amicable manner. The more issues that have to be decided by a judge, the longer your divorce will take.