This is a common question asked by litigants, but it is not easy to give an answer because there are many variables that must be considered, including the conduct of the other party and/or their willingness to settle, delays caused by the courts in processing your paperwork, or delays in court if you and your spouse are unable to reach a deal without litigation. It is not possible to determine how long the divorce process can take until the divorce process is over and the judgement of divorce is signed by the judge presiding over the case.
However, these basic guidelines will help you understand how the process works. If you and your spouse are on amicable terms, and are able to sit down with or without attorneys and work out a deal, then it is simply a matter of filing the papers with the court, which entails waiting for the county clerk’s office to process your paperwork and then waiting for the judge to process and sign the judgement of divorce. Depending upon how busy the local clerk’s office is and also depending upon how busy the judge is, this process can take as little as three weeks or as much as 10 months.
Truth be told, very few cases in this field are resolved quickly. Many a time, a litigant will come to us, retain us and advise us that everything is “agreeable” between the litigant and their spouse, but this is rarely the case. The vast majority of the time, there is one or more issues that are not agreeable and this leads to litigation. If a case is headed to court, then the amount of time taken to complete the case increases greatly. In some instances, the parties make one or two court appearances and eventually compromise and reach an agreement, when they ascertain the cost of court time and all of the prep work that this entails.
In the case where both litigants dig their heels in and are prepared to battle to the end, a divorce case can take 18 months to two years to complete, and sometimes more. In rare instances, a divorce action can drag on for 10 years or more. To give an example, I am currently representing a litigant who has been through a half dozen attorneys and has been litigating her divorce case for 12 years going on to the 13th year!
More commonly, a litigated divorce action consists of the following:
- Discovery – This phase of the case is when the litigants exchange financial documentation and try to pry whatever information they can about the other’s finances during the marriage. Discovery is commenced with the first court appearance, which is called the preliminary conference. At the preliminary conference, the court and attorneys set up a schedule for the rest of the case and file a statement of net worth, which provides the court with a snapshot of your financial situation. Normally, discovery will take two to four months, which includes document demands and exchange of documentation, issuing subpoenas if you feel that your spouse is hiding financial documentation, and finally a deposition, where your attorney can sit down with your spouse and ask questions about financial matters before a court reporter.
- The discovery phase can be sidetracked by motion practice, which includes asking the court for financial relief by way of motion. Examples of the type of relief requested include temporary custody of the children, temporary child support, asking your spouse to pay the marital bills during the pendency of the case, or even asking for your spouse to pay for counsel fees. Often, this type of motion requires a hearing, as the judge handling your case wants to assess credibility by watching you and your spouse testify under oath.
- Cases are often sidetracked when one spouse files a family offense petition against the other or obtains an order of protection. This may lead to one spouse being arrested and then that spouse has to deal with criminal court proceedings along with the pending divorce action. This may delay a case while things are sorted out in the criminal court or family court.
- Once discovery is complete, the case can be certified for trial at a pretrial conference. You must then file an updated statement of net worth and other documents to get your case placed on the trial calendar. However, your judge may not have trial dates available until six months to a year after the pretrial conference, during which time period the case will stay dormant until you get to trial.
- Once a case gets to trial, some judges will go day to day with the trial until it is completed, and others will schedule a couple of days and then adjourn the trial and have you come back to continue the trial several months later. This depends on the judge, their preference and their schedule.
- After a trial is finally completed, many judges request that post-trial memorandums are submitted, which outline each party’s respective position on each issue. It may take 30 to 90 days to complete the post-trial memos, depending on how much work the post-trial memo entails.
- Once the post-trial memos are submitted, then you must wait until the judge renders a decision. This may take 30 days to a year, depending on how fast the judge gets to decide your case. The litigants and attorneys have no control over this, so it could be a while before you know what the outcome of your trial is.
- If a party is not happy with the judge’s decision after trial, or with any decision made during a divorce case, then that party has the right to appeal. If an appeal is done during the case (prior to trial), it could delay a case for months on end while you wait for the appellate court to render a decision. Normally, the appellate division takes three to 10 months to issue a decision on appeal.
As discussed in detail above, a divorce case can be resolved quickly or it could take several years to complete. It is difficult to predict how long it takes to obtain a divorce in New York, unless you choose to control your own destiny and settle your case without litigating. The amount of time it takes to complete a divorce case, or any litigation for that matter, depends upon many factors, some of which cannot be controlled by the litigants or attorneys.
In many cases, it makes more sense to reach a settlement that you are slightly unhappy with rather than spend thousands of dollars litigating, because the benefit reached by taking the case to trial may not outweigh the cost. And, most importantly, it is likely that you will not be pleased with the court’s decision, because there are no landslide victories in divorce cases. Divorce courts are courts of equity, not courts of equality, so the judge will do what is equitable (not equal) and try his best to balance things out so that neither you nor your spouse is completely happy. More likely, both you and your spouse will be unhappy with the end result, especially when considering the amount of money you spent litigating.
The best advice that I can give is to try your best to control your divorce case by reaching an agreement as quickly as possible. Once you get entangled with the court system, the movement of your case will be at the mercy of the court’s schedule, which is not predictable and often overloaded with other cases. So, as any matrimonial judge or lawyer will tell you, if you walk away from a divorce agreement a little unhappy, it was probably a good agreement.