Attorney Brad Tengler and Geoff Carter discuss the factors involved in the length of divorce litigation, including how getting along with your ex can save you a lot of time and money and make the divorce process go more quickly.
September 10, 2013
Recording: Law Talk does not give legal advice. It is a source of information for people suffering the effects of divorce or who have ended long-term relationships. If you need legal advice please retain an attorney in your own jurisdiction.
Brad: Good evening folks and welcome to Divorce Talk Radio. This is attorney Brad Tengler here in the studio with Geoff Carter. What’s going on man?
Geoff: Man not much. How are you doing?
Brad: I’m doing great.
Geoff: Outstanding. What’s the topics for today?
Brad: Today’s topic of conversation as how long does it take you to get a divorce?
Geoff: Yeah. And what I’ve asked you from before you make it seem like it can be like a very, very long time.
Brad: It is an unanswerable question.
Brad: At the beginning of a divorce procedure is unless it’s with the exception of the parties being able to get along. You just can’t answer that question especially when you’re dealing with children, but everyone wants to know what. And I don’t blame them. I want to know it too.
Geoff: And a lot of things go into it also. I’m guessing not just signing the paper. It’s like you said, the custody thing and also money.
Brad: Signing papers have to… Before signing papers you have to have agreements or you have to have a hearing in front of the judge in order for a judge to rule the things that you disagree about it. And so the divorce process can be anywhere from days two months period of time to a two-month period of time to a sometimes two period of time. And obviously there are exceptional cases I just saw in this news article in Connecticut divorce that it has been litigated for the past 10 years and the parties are still not divorced. I mean that’s ridiculous, but reasonably speaking especially when you’ve got kids you can expect a significant amount of time.
Geoff: Okay so since I’ve never been married or divorced, and hopefully I don’t have to either one, but where does that begin? Let’s say basically I’m the husband and I saw all right I want a divorce so when I file for it how do you even start all of that? You go and get the paperwork for it? Where do you get it from? Do you go to the courthouse? Do you call an attorney first?
Brad: Well first of all Geoff I’m going to tell your current girlfriend that you just said you don’t want to get married so you’re in trouble. Yeah, but to answer your question can you repeat that?
Geoff: Sure, sure. How do you… What’s the first thing you do I mean obviously people figure this all of the time, but I mean do… Are it I’m not in love with you anymore, whatever reason it is, I want a divorce. Okay so do you going get paperwork is by yourself to start that and say all right we’re going to sign off? How do you begin a divorce, or do you . . . are ready go to like both go to an attorney and kind of both meet for lunch and say all right, starting Tuesday we’re going to start. I mean how does the ball get rolling? How does the ball start rolling for divorce?
Brad: You have to file a petition for a dissolution of marriage. Okay, now that petition you can file for per se. No one is required to have an attorney.
Geoff: All right.
Brad: Or you can get an attorney, both of you can get an attorney, an attorney never can represent both of you at the same time although sometimes one of the parties and the relationship does not have an attorney. But you have to file a petition for a divorce and that is begins to process. So when people whenever come to me and say something like well call we handle this entirely outside of court? No, you can’t handle it outside of court.
The court has to actually grant your divorce. So that begins the process, but that’s only the beginning of the process and then you have to deal with the financial issues and if there are children involved you have to deal with all of the child related issues. And I guess that’s what I’m thinking about in particular, divorces with children usually require a great deal of time. It’s not something that happens overnight. It’s probably not something that should happen overnight.
Brad: People you know? Need to move on with their lives and relationships, but you’ve got to work out all of the child related issues and it is usually difficult and unwise to do that quickly.
Geoff: So I guess the question is what are some other steps to make it a faster is, not necessarily a faster, but a better divorce I guess? To make sure you cover all of your steps but also do it within a timely manner, is there a certain process you would maybe suggest like it is things you would skip or something like that? Or things to really work on to make sure it goes more smoothly so it’s speeds up the process? For most people at I guess would want a faster divorce. They don’t want it to drag out because emotions, money, time and all of that stuff. I mean I’m guessing. I mean what is that?
Brad: The number one thing to do to make sure that your divorce goals as quickly as possible it is to stop fighting with your ex. I mean if someone’s having an affair or someone’s isn’t in love with anyone anymore, it’s a fact, it’s just the way it is. I mean if you got kids involved stop fighting with them so that you can work out you the practicalities. Really the business side of your relationship is just going to be your relationship for the next number of years as the kids grow up because if you don’t, it will extend the process for the divorce and it will obviously incur more [inaudible 05:22].
Geoff: It’s a lot of stuff to figure out. Like I’m guessing when people do it not only do you have all of that time and things you had together I can house together, cars together, animals together, finances together and then you have to figure out babysitters. You have to figure out who’s getting full-time custody or are you splitting. I mean that’s a lot of stuff to figure out than when you had it all together, but I understand like it just don’t work out.
Brad: Sure, it’s a ton of stuff to figure out and there is a process for doing it. And for instance one of the things which is common in our counties in Illinois is that by ordinance people are required to go to mediation to deal with child related issues. Mediation is a process, it doesn’t happen overnight and people oftentimes don’t want to be talking to their exes but when kids are involved they have to be willing to talk to their exes because they’ve got all of these child related issues they need to talk about.
When are we going to visitation? What are we going to do parenting time? When are we going to do about holidays? What are we going to do about the summer? What are we going to do when people want to go out of state? When you or I want to go out of state with one of the kids, how are we going to handle all of those situations and this people need to actually fit down in a structured setting usually and have conversations about that.
Now there are obviously exceptions. Now I have seen where couples are soon to be ex couples come in and they have already figured out what they’re going to do for holidays and what they’re going to do for the summer or what they’re going to do for regular parenting time for each parent during the week. But, that is the exception. A lot of times there’s too many emotions that are going on, they haven’t thought through all of those things and that’s normal.
So it’s a process, the go to mediation, you talk about it, you figure out things that you agree about. There’s usually things that you disagree about which means you might need to go back to mediation to talk about it again because you’re only given initially only about an hour of time. And then tried to go back, try to work those things out and if you can’t work those things out then you’ve got to press forward with the litigation.
Geoff: Now do both sides ever meet together without a court? I mean does that ever happen where it’s like the husband-and-wife are together to have their own separate words when you guys meet somewhere? I don’t know where it would be.
Brad: All of the time.
Geoff: Oh, really so it’s not like it always has to be handled all in court then.
Brad: Yeah. I do that all of the time and there’s actually benefits. There are certain attorneys that are certified as collaborative divorce lawyers. As attorneys we can practice in here within the law that we so choose and a lot of us concentrate in certain areas. Collaborative divorce attorneys, they have their clients sign contracts that are not going to court to litigate except for the divorce proceeding and handle it by having it set on the conferences and trying to work everything out. Sometimes that works, sometimes it doesn’t. But even if you’re litigating, I do that all the time. You know? You set up to settle a conference with opposing counsel, with the other side and you just simply tried to talk and work things out. You know what I mean?
Geoff: But then you just need the judge to say that, the end-all? Pretty much say it on paper, you pretty much go into the court are really knowing what both sides want and you just all right, this is now on paperwork.
Geoff: Okay. That’s, like that.
Brad: Absolutely or you going to court and you realize what we have agreements about 90% but just arguing about those last 10%. You know?
Geoff: So he would leave the other stuff untouched then?
Brad: Well think about it. I mean, if you need a hearing in front of a judge for a 100% of the issues that might be a three-day hearing.
Geoff: Oh yeah.
Geoff: But it’s not all together either.
Brad: 5% of the issues like we disagree about how much there should be on child support. We agree about on how much child support should be because it’s statutory formal for that. But we disagree about how much [inaudible 09:27] should be because of this issue and that issue. So that’s the only issue that you’re arguing, you might be able to argue that and take 20 min. of the judge’s day to argue that. It’s not that big of a deal, not three days.
Brad: So again it goes back to how good the parties are at talking about things and trying to work things out by going to mediation. If mediation fails and children are involved, the next step is getting a guardian. But we also, I also meet with the other side with opposing counsel and try to work things out that way as well.
Geoff: So like a ball park guesstimation. Like a minimum of a year you think? Because I’m thinking in my head, all right well if you have to find out who’s roughly fits. There is a disagreement about who wants the kids or the kids or whatever and you’re trying to think what’s best on that and they have to do all of this stuff you told me about it’s not like they research everyone. They have to go in a find out from family and they find out from school and they find out from different areas with the best fit for the situation of the child. I’m guessing that’s a decently long process to make sure they made the right decision.
Brad: I think a divorce with children a minimum of a year of being in court is pretty reasonable. Again, I’ve seen two years, I have seen two or three months but that’s an exception.
Brad: But it takes about, you know? It takes, you’re going to be going to mediation and mediation for two, three, maybe four months. Then if a guardian gets involved and then provides their part for another number of months. And then to get a hearing date. That even of itself is difficult to do sometimes.
Geoff: Why is that?
Brad: Our pact, you know? We just have too many cases and so especially when it comes to financial issues in a divorce we’re often given back up trial dates. And a backup trial date means there is a serious custody litigation or in order of protection that needs to be heard and our financial case might get bumped.
Geoff: Wow. So it’s like an appointment and a sense of everything basically. Like we’re booked until… We can’t even get you in for a while so you might as well sit tight.
Brad: And to get a trial date you know I might be two months down the road or something like that. Obviously there’s exceptions with that if there is abuse or neglect or something like that going on, then the court moves around their schedule to get those kinds of cases quickly. But, absent those emergencies it takes a while sometimes to get a trial date too. That’s just how it goes.
Geoff: I always give oddball questions. I was just trying to think what would happen if you know? Somebody was together and the husband or wife like they’re getting in trouble and they know they’re going to go away? Like go to jail or something like that because can you go through a divorce while you’re in jail? Not that I’ve ever been in jail but I just think…
Brad: Who talks about that Geoff?
Geoff: No that’s just a…
Brad: When you were in jail you go through that divorce, you are not able to get a divorce.
Geoff: I was just wondering because I’m guessing map of the lot where people… You know like if I’m a female of a drug dealer and he got caught in he’s going to jail and I’m like you know? I don’t want to be married to this guy no more. Well now I got to wait 10 years until he gets out?
Brad: No, no, no. You can get a divorce.
Geoff: Okay, sorry.
Brad: If your soon-to-be ex-spouse happens to be incarcerated, yeah you can still get a divorce. You know? They, they can hold you hostage and that marriage. You know? They have an obligation, I don’t know. Showing up to court, it’s one of those kinds of situation they have to get an attorney.
Geoff: I think that we should research this. I’m down, we should do a show.
Brad: And then they have to be right back to the court date.
Geoff: Can we do a show on it in the future? Like…
Geoff: What would people incarcerated have rights and everything? For like custody, while not for custody obviously but…
Brad: I think it’s a very relevant tie.
Geoff: All right so I’m incarcerated.
Brad: If you can still get a divorce is if your soon-to-be ex-spouse is incarcerated.
Geoff: And the question now I forgot what it was. Darn it. It has nothing to do with incarceration though but…
Brad: Well just to kind of recap here. What people have to be aware of when they’re going through the divorce process especially when they have children is that they first of all should do their best to try to come to agreements with their soon-to-be ex-spouse. It’s going to save the money; it’s going to save them time.
And then secondly that the divorce process does take time. I mean even for irreconcilable differences you have to live separate and apart for six months once you prove it up on fault grounds, like cruelty, etc. But that’s really not what takes the time. What takes the time is talking through all of the child and related issues, getting a guardian ad litem if there’s visitation and custody issues that need to be addressed and then preparing for a hearing for an actual trial if people continue to disagree about custody and visitation issues.
When it comes to financial issues, when it comes to financial trials, people usually it’s easier for them to come to agreements about but there’s something like maintenance that are a bit ambiguous in general. Judges have a lot of discretion. And so…
Geoff: When they say maintenance just to reiterate, alimony?
Brad: Thank you.
Geoff: I’m sorry, I just didn’t know what was into you told me.
Brad: Yeah, maintenance is a term for alimony. It’s the same thing as spousal support under certain circumstances when parties have been married for a certain amount of time and/or one of the spouses is disabled it’s or needs career opportunities.
Brad: Those things take time and the best thing you can do is try to restructure your relationship with your ex-spouse into an effective business relationship for lack of a better word and try to work things out.
Geoff: Okay. Can I ask another question?
Geoff: Okay so the other question is not as crazy as the last one is. Let’s say if I want to divorce my wife and I decide to do that, do I have to get her permission? Because I’ve heard this before, they won’t sign so they do have to sign the paperwork. No? Is that all just a rumor is?
Brad: Your spouse can not hold you hostage to your marriage.
Geoff: So you can if you wanted to do it? What was that oh I won’t sign your divorce papers. I’ve heard that.
Geoff: What does that mean?
Brad: What that means is that we tried to come to agreements like a marital settlement agreement or a joint parenting agreement.
Brad: In absent agreement, judges have to make decisions. Just because someone would sign doesn’t mean that they can hold you hostage in your marriage. It means practically speaking it’s going to take you longer to get the divorce.
Geoff: Oh, okay.
Brad: Or irreconcilable differences and you have to live separate and apart for two years in order to obtain divorce by means of irreconcilable differences unless it’s both parties sign, waive that time period and agreed to six months.
Geoff: But that can also make you miserable on somebody that wants to get remarried or something like that.
Brad: So if it’s a year and six months later and somebody has started dating someone else, you might have to wait six more months to get that divorce. Unless you prove up the divorce on other grounds and that’s cruelty, adultery, abandonment, alcoholism, all the other grounds in the statue.
Brad: All right.
Geoff: All right Brad, I learned a lot about how long, times and a lot of people ask that question about how long is custody and how long does divorces takes. And there’s no real set time. I’m glad that you reiterated that.
Geoff: Outstanding. So do they get a hold of you if somebody like you would represent them?
Brad: We’re located at 515 North Court Street in Rockford, Illinois. We serve the Rockford area and the greater Chicago area and our number is (815) 997-5200.
Geoff: And also don’t forget to check out tenglerlaw.com.
Brad: Thanks, Geoff.
Geoff: All right, take care.