WHY DOES IT TAKE SO LONG?

Daniel H. Moss
Oakland County Divorce Attorney
248-855-5656
also practicing in Wayne, Livingston and Macomb Counties

Clients often ask me why it takes so long to get divorced. In Michigan and many other states, the quick answer is the statutory waitng period. The waiting period in Michigan is 180 days for a marriage with children, and 60 days where there are no children. The purpose of the waiting period is to give the parties time to cool off, so as to encourage reconciliation, more so with children.

However, many divorces take much longer than 180 days. The reasons for delay include failure of the parties to agree on issues such as spousal or child support, division of property, custody and parenting time.

Clients will suggest that, "we've agreed to divide the property 50-50." My response is 50% of what? This is a serious question, because how many stay at home moms know how much money there is and in what form the financial accounts of the family or husband are kept? How much income does he really make?

To find out what the real assets and income of the family are, lawyers must do legal discovery. Discovery consists of written requests for information or taking testimony under oath to find out "what" you are getting 50% of.

There are other forms of discovery, as well as pretrial evidentiary hearings and motions in court to find out information, to provide for interim support, payment of bills and to enforce compliance.

In cases where children are involved, the Friend of the Court schedules appearances and investigations relative to support, custody and parenting time. They may have preliminary evidentiary hearings before a Judge even hears the same issues. There may be a business to evaluate.

All of these procedures take time. Parties may have at least 28 days in some instances to answer some discovery requests. Evidentiary hearings take time to schedule and prepare for. Expert witnesses need time to investigate, prepare reports and get ready for trial, if necessary. When one of the parties or attorneys doesn't cooperate with the process, more delay occurs. This may occur as part of a strategy or for emotional reasons.

Throughout all of these proceedings, scheduling must accomodate the parties, the attorneys, witnesses and judges - all on the same day and time.

When all is said, if the parties are well informed of their income and assets, have current, written documentation and agree on custody, support and parenting time, then the case may proceed quickly through the system. When they also employ competent, honest counsel, the parties can achieve a divorce in the shortest time, with a minimum of emotional and monetary cost.

DIVORCE: One Attorney for Both Parties?
Daniel H. Moss
Oakland County Divorce Attorney
248-855-5656
also practicing in Wayne, Livingston and Macomb Counties

I am often asked by my client if I can represent both the husband and the wife in a divorce case. My client will usually indicate that they and their spouse have been talking about getting divorced. They seem to have a general idea of how they want to work it out, and they want to save the added expense of using two attorneys.

The answer is that to have one attorney represent both parties in a divorce creates an inherent conflict of interest. It creates a situation where, some time in the future, one side or the other might come back and say that the attorney did not fairly advocate and represent his or her interests, and they want the settlement to be set aside.

I inform my client that although I can only represent him or her, I can prepare all of the pleadings, the property settlement and the Judgment agreed to by the parties. We can then take the proofs at court, and the parties will be divorced. However, other party must sign a provision in the Judgment that “The husband (or wife) understands that Daniel H. Moss represents only the wife (or husband) in this case, not them, and the husband (or wife) has consulted their own attorney about the matters in this case. Further, Daniel H. Moss makes no representations to the husband (or wife) about whether or not any provision in this Judgment or settlement is in their best interest.”

The above process is similar to a “Collaborative Law” process, whereby both parties use the same lawyer and experts to resolve their issues without going to court. However, in "Collaborative Law" they all sign a contract which requires the attorney and experts to withdraw from the case if either party chooses to go to court. You lose the lawyer and expert whom you’ve come to know and trust, and you must start from scratch with new professionals.

Often, after being apprised of their support and property rights, most people who thought everything was agreeable with their spouse soon realize that things were not as they seemed. Husbands tend to get upset after learning that the value of half of their pension or business is going to go to their soon to be ex-wife. Wives are sometimes surprised that they may, indeed, be entitled to spousal support, or how much or how little child support they might receive.

I believe it is best to first consult your own lawyer, learn what your rights are and what you might reasonably expect in the divorce. This is particularly important where there are substantial assets and income. Once you are aware of your rights, you will then have a pretty good idea of how sincere your spouse is in trying to amicably work things out.