Guide to help speed up the resolution of divorce cases
Divorce cases can be extremely quick or excruciatingly long. Whether a divorce case is resolved within a matter of months or within a matter of years depends on a variety of factors, some of which are in the parties’ control and some not. A dissolution of marriage case is usually swiftly resolved when both parties are cooperative, disclose assets in a timely and complete fashion, work together to reach agreements on important issues, timely complete paperwork, and communicate often and promptly with their attorneys. Usually, the fewer assets a couple has the less they have to fight over and the quicker the proceeding. In high asset divorce cases, the divorce proceeding can take longer because the issues are more complex and there are more assets at stake.
However, as our Orange County high asset divorce attorneys have seen, when one party and/or their respective divorce lawyer is not cooperative, fails to complete paperwork in an orderly and timely fashion, does not provides full and accurate financial declarations of disclosure, or does not communicate effectively, a divorce case may take years to resolve.
In many high-asset, high-value divorce cases where millions (or more) dollars are at stake, it is common practice for one party and/or their respective counsel of record to use delay tactics to avoid resolution. There are a myriad of reasons why a party or attorney may try and cause a divorce matter to extend months or years longer than necessary.
Some reasons a party may want to delay a divorce case include:
- The party receiving temporary spousal support (alimony) often has a vested interest in trying to extend the pendency of a divorce case for a long period of time. The reason is that temporary alimony orders are generally 10-20% higher than permanent spousal support orders, as temporary alimony orders are calculated using a computer program and permanent orders are based only on Family Code 4320. Most family law judges, although not permitted to review the “Dissomaster” calculation and use the calculation as a basis for its order, do view the computer program and cut 10% or more from the amount as a first step.
- Some divorcing spouses are spiteful toward their partner and want to “make them pay” in a divorce case. The longer a divorce case takes, the more expensive it becomes and the more aggravating it can be for the litigants.
- When an opposing party has not been forthright in disclosing substantial assets, or perhaps is concealing money overseas or is involved in convoluted business entities, the party without the information may (and should) delay the conclusion of the hearing in order to get the information needed through discovery.
- When children are involved, if a party obtains a favorable child custody order on a temporary basis after filing a Request for Order motion, the party with the favorable order may seek to delay the finalization of the case in order to establish a longer “precedent” for that favorable order.
Some reasons a party’s family law attorney may try and delay a divorce case include:
- The lawyer believes that the longer a case is delayed the stronger negotiating position the client will be in to obtain a better settlement. Perhaps the other side will become anxious to settle, aggravated with the amount of time the case is taking, is involved in a new relationship and wants to move on, and so forth.
- Some lawyers’ standard practice is to heavily litigate cases including conducting a significant amount of discovery so that “no stone goes unturned” in the case and nothing is missed. This is a fine practice, but takes a long time.
- There are some “bad” attorneys in Orange County that simply want to bill their clients and don’t care whether that is the best tactic for the client or not. For a detailed guide to choosing a divorce lawyer, click here.
When delay tactics are employed by the other side in your divorce case, there are ways that you can try and move the case along. You do not have to sit idly by and hope that the other side begins to cooperate. This guide is intended to provide some mechanisms to help force the other side to move the case along.
File a Motion (Request for Order)
There is nothing like filing a motion and forcing the other side to appear in court to help move a case along. The mere fact that a case file will be sitting in front of a judge is helpful, as judges are under relatively strict guidelines to ensure cases are moved along in a timely fashion. The motion can pertain to a substantive issue like child support or custody, spousal support, or payment of some particular community debt, or the motion can deal with procedural issues (see below re: Family Centered Case Resolution Plans).
Often high asset divorce litigants and their attorneys delay cases for no particular reason. They may not have a vested interest in trying to resolve a case promptly, or they may be too lazy to take proactive steps to resolve the case. They also may want to avoid moving the case along for any of the other reasons highlighted above. Whatever, the case may be, we often begin conducting “intrusive” discovery in divorce cases which forces the other party and their counsel to gather information, respond to interrogatories or requests for admission, gather and respond to a lengthy document demand, or sit through a deposition.
Obviously, no party should ever conduct discovery unless you need the information being sought. Sending discovery demands to the opposing side usually does result in action by the other side, which may help move the case to conclusion.
File an “At Issue” Memorandum
One particular Judicial Council form that may be filed to help move a case along is called an “At Issue Memorandum for Trial Setting”. The form can be found by clicking here. The party wishing to move a case along may file and serve this form on the other party. However, you will have to certify in the form that each party’s Preliminary Declaration of Disclosure has been completed and served and that there is no outstanding discovery. The Orange County Family Court Clerk will then process this form and set a hearing so that trial can be set, or alternatively, set trial. The opposing party can object to the filing of the Memorandum by filing a counter-memorandum (which is the same form), indicating that discovery remains ongoing, etc.
Alternative Dispute Resolution & Privately Compensated Judges
One way to move a case along much more quickly than through the public family court system is to remove the case from the public court system to another forum, which is usually called “alternative dispute resolution”. In divorce cases, this is referred to as mediation. In mediation, a third party will help the parties try to reach an agreement outside of court.
Alternatively, many high asset divorce litigants choose to have their cases heard by a “privately compensated” judge. These judges are usually retired judges that work for companies called “JAMS” or other similar firms. Privately compensated judges can schedule hearings and trials in a matter of days or weeks, as opposed to months or years as in the public family court system.
Of course, the other side will have to agree to mediate the divorce case or hire a privately compensated judge. If the other side is intentionally trying to delay the resolution of the case, it is unlikely they will agree to the alternative forums described here.
Family Centered Case Resolution Plan (FCCRP)
The California Family Code and California Rules of Court provide for certain wonderful (and little known and seldom used!) rules that allow a party to request that the court enter certain orders that the force the resolution of a divorce case. California Family Code 2450 provides for the purpose of a FCCRP:
(a) The purpose of family centered case resolution is to benefit the parties by providing judicial assistance and management to the parties in actions for dissolution of marriage for the purpose of expediting the processing of the case, reducing the expense of litigation, and focusing on early resolution by settlement. Family centered case resolution is a tool to allow the courts to better assist families. It does not increase the authority of the court to appoint any third parties to the case.
(b) The court may order a family centered case resolution plan as provided in Section 2451. If the court orders family centered case resolution, it shall state the family centered case resolution plan in writing or on the record.
California Family Code 2451(a) states:
(a) A court-ordered family centered case resolution plan must be in conformance with due process requirements and may include, but is not limited to, all of the following:
(1) Early neutral case evaluation.
(2) Alternative dispute resolution consistent with the requirements of subdivision (a) of Section 3181.
(3) Limitations on discovery, including temporary suspension pending exploration of settlement. There is a rebuttable presumption that an attorney who carries out discovery as provided in a family centered case resolution plan has fulfilled his or her duty of care to the client as to the existence of community property.
(4) Use of telephone conference calls to ascertain the status of the case, encourage cooperation, and assist counsel in reaching agreement. However, if the court is required to issue an order other than by stipulation, a hearing shall be held.
(5) If stipulated by the parties, modification or waiver of the requirements of procedural statutes.
(6) A requirement that any expert witness be selected by the parties jointly or be appointed by the court. However, if at any time the court determines that the issues for which experts are required cannot be settled under these conditions, the court shall permit each party to employ his or her own expert.
(7) Bifurcation of issues for trial.
California Rule of Court 5.83(d)(1) provides that “the court may hold an initial family centered case resolution conference to develop a specific case resolution plan.” Further, counsel appearing at the hearing must be familiar with the case and must be prepared to discuss the parties’ positions in the case. (Cal. Rule Ct. 5.83(d)(3)).
Thus, a FCCRP can be an extremely effective and useful tool to help move a case along.
Contact our Office for a Free Consultation
If you are involved in a divorce case where the other side is either intentionally or unintentionally delaying the resolution of your divorce case, contact our Orange County high asset divorce attorneys today. We provide a free, private consultation to discuss what is happening in your case. Call or email us today.