A common question I hear during my first consultation with couples gathering information as they prepare to divorce, is “how long does the process take?” There are a few different clocks that we must reference to answer this question. First, in mediation, there is the time it takes to get the couple to a place of agreement, capture the agreement in writing, comply with disclosure and other paperwork requirements, and get everything signed off. Second, there is the timing of the Court’s processing of such paperwork culminating with the Judge signing off on it. Third, and finally, is the statutory cooling off period imposed by each State calculated to give the couple an opportunity to slow down and make sure they are not making a rash decision. In this week’s blog I will explore the ticking of these various clocks and the value of choosing a divorce process that lets you go at the right pace for you and your spouse.
The Speed of Mediation. I have outlined in previous blogs the work that must be done from start to finish in a divorce mediation. The couple must get educated on the law and issues, exchange information and documents on assets, liabilities and income, they must explore options and come to agreement on terms then get everything formalized in writing. In my mediations I have the couple work on gathering documents before our first session so we have as much information as possible at the outset. Needing appraisals or gathering missing information may slow the pace. Another clock at play involves the couple being emotionally ready to move forward with decision making. One spouse may still be processing the breakdown of the marriage. We might discuss finding a pace that is not too slow for the spouse ready to get things done and not too fast for the spouse grappling with emotions that might stand in the way of sound decision making.
A great benefit to mediation is that it can go at the pace of the couple. In litigation, pressing decisions such as figuring out interim child sharing schedules and support might take a few months before being heard by the Court. In mediation the couple can sit right down to address those pressing issues so there is clarity in expectations from the outset. Couples that are ready to get things done have the option to do just that in mediation. Typically within about a month of the couple reaching agreement on the terms of their agreement they complete the formalities of all the paperwork needing to be filed. A Petition to initiate the case can be prepared, filed and served. A draft of the agreement can be prepared and circulated for review and edits. The exchange of the disclosure paperwork can be completed. The final set of documents can be signed, notarized and returned to the mediator who will make copies, meet other processing requirements, and get the packet to the Court.
I reiterate the importance of finding just the right pace. The benefit of having a forum that meets needs as they arise and allows for efficient settlement of the issues should not result in moving to decision making before each spouse is ready, and all information is available and exchanged. It is just nice to not have to be bogged down by the scheduling delays related to the Court’s hearing and trial date availability.
Court Processing Timelines Court processing times vary from County to County, Courthouse to Courthouse and even Courtroom to Courtroom. With the Court closure that resulted from Covid many of the Courts were subsequently inundated with filings which caused slowing in the processing of the Judgment packets. My practice is primarily in San Diego County and depending on the Courthouse and Department, the processing of the Judgment packets once they have been submitted can take as little as two weeks to as long as four months. I have recently started seeing processing times picking up with the slower processing Courts so a typical processing window at this time might be 1 to 2 months on average. When the couple signs off on the Marital Settlement Agreement they have entered into a binding contract so while they wait for the Court to process the packet they can move forward consistent with their agreed upon terms. It becomes an order of the Court once signed off on by the Judge. Occasionally there may be paperwork that needs to be corrected so it does give a much greater comfort and sense of finality once the terms have been accepted and signed off by the Judge. Once the Judge has signed off the paperwork usually is returned by the following week.
California’s Cooling Off Period. The one remaining clock at play is whatever statutory cooling off period your state has before the status of the marriage is ended and the couple is restored to the status of single people. California has a six month cooling off period. This date has some added significance as if a spouse has health insurance through the employment of the other spouse, their eligibility for such coverage ends once the status of the marriage ends. A spouse can expect to have at least six more months of coverage at the commencement of the divorce.
The six month period does not start until a Petition has been filed and that Petition has been served on the other spouse, or the other spouse files their Response with the Court, whichever occurs first. The simple filing of the Petition does not start the clock. The status of the marriage does not end automatically upon the running of the six month period. The second requirement is that the business of the divorce must also be completed, or a special request (called a bifurcation) must be made and granted by the Court that allows for the ending of the status of the marriage before the business is handled. In many of my mediations the couple has reached settlement, we have submitted the final paperwork to the Court, and it has been processed by the Court inside of the six month cooling off period. In that situation the clerk will insert a future termination date into the Judgment which is six months from the date of the service of the Petition. The Judgment is completed but the status of the marriage will not dissolve until the date indicated arrives. Health insurance benefits will continue until that time and neither spouse can seek to remarry until the termination date arrives.
Couples can extend the termination date by agreeing to add a provision to their agreement that defers the date, which is sometimes done to extend the health coverage to allow for more transition time in obtaining other coverage. Couples can also proceed with a Legal Separation which does not have a cooling off period and which may allow a spouse to continue enjoying health coverage through the other spouse. You will want to check with the applicable plan before doing a Legal Separation to preserve health insurance benefits as many plans have now made Legal Separation a terminating event for health insurance coverage for a spouse.
There is actually a lot of information that goes into answering “How long does the divorce process take? The cooling off period set by each state and the processing times of the Courts are beyond the control of the couple. The couple also loses control of the timing of their divorce if they rely on the Courts to make the decisions. Using an out of court method to address the divorce allows the couple to find just the right pace through the process. Consider choosing the right divorce option for you that allows you to accomplish the best outcome in an acceptable period of time.