So how long does divorce actually take? Well, if you’re going by Arnold Schwarzenegger and Maria Shriver’s divorce, it takes four years.
According to TMZ, the former governor of California still has not signed divorce papers. And while there are no remaining issues to be resolved following their 2011 divorce, it seems that Schwarzenegger just will not sign.
Contested and Uncontested Divorce
The question is then, is it legal for Schwarzenegger just to not sign?
Well it really depends, according to family law attorney David Wilkinson.
“It depends. There are two types of divorce cases, uncontested and contested. If Shriver and the Terminator were trying to do an uncontested divorce case without any court action, then she would have to wait for him to sign a settlement agreement. There is nothing she could do to force him to agree or sign a divorce judgment. However, if she wants to apply some pressure to get him to sign, then there are certain things she could try.”
Uncontested and Contested Divorce
The rules defining “uncontested” and “contested” divorce are simple enough. In an “uncontested divorce,” a couple is able to reach the terms of their divorce without going to trial. That means they are able to agree on property division, child custody and visitation, and alimony.
In a contested divorce, a couple is unable to come to a decision about these things, and thus must work through the court system to resolve their issues.
A divorce settlement agreement is a written document that memorializes any agreements that have been reached between divorcing spouses regarding child custody, child support, alimony, and property division. Once spouses have determined all of these things, they are able to sign a settlement agreement, marking the end of their divorce, and their marriage.
It’s advised that an attorney or mediator draw up the agreement, to ensure it is legally sound. After both of you sign it, it becomes a binding contract and both spouses are obligated to follow the terms set forth on the agreement.
Depending on the state you live in, you might be required to submit the agreement to a judge. At that point, it is incorporated into your final divorce decree and it becomes a binding court order. Thus if either spouse violates the order, either one can be held in contempt of court.
If you are waiting for your spouse to sign your divorce papers or a divorce agreement, and they just aren’t, there are things you can do says family law attorney Steven Kampf.
“If another party doesn’t respond to a divorce petition, the other party can seek a Default Judgment against them. If there is no response after 30 days, they can file a request to enter a default judgment. Once this is done, the court will usually set a court date for a default judgment prove up; that is a court hearing where the one party would go and prove everything they allege or request in their petition that was never responded to. This is the proper route to take in this situation.”
A default judgment is when a party fails to respond to the divorce position they are found to be “in default.” This default judgment is usually the last step when it comes to finalizing the uncontested divorce.
When it comes to obtaining a default judgment, it will vary from state to state. Here are some general steps you will need to take:
- Submit a request for a default judgment in the divorce matter that proves you have made every effort possible to inform the other party about the divorce.
- If you are seeking child custody, child or spousal support, or a division of marital property or debt, you will need to submit paperwork that defines these. You will most likely need to disclose your income and assets. A judge might request that you make one last attempt to deliver the documents to the other party, even though it’s not expected that the other party will respond.
- Your local court may require that you submit local forms for a default judgment.
- It might be required that you attend a final hearing before the process is completed.
“Now, if the Governator did respond to the original petition (which is very likely or Maria would have already gotten a default judgment against him), then the best thing for her to do would be to address this at the Family Resolution Conference (aka Status Conference). The court automatically sets these FRCs about every six months. Basically the purpose of a FRC is to see the status of the case.”
During a Family Resolution Conference a judge will review what is going on with the case or to notify parties that something is wrong with their paperwork. It’s a routine meeting that is not meant to penalize any of the involved parties.
Dealing with an Uncontested Divorce
In Shriver’s case, according to Wilkinson, these are the next steps she could take:
“Assuming Arnold has any sort of lawyer working on his case, they would never let a default happen. Instead, she could propound discovery, start taking depositions, etc. This may prompt Arnold to take action to finish the case.
She could file an “At Issue Memorandum” with the court, requesting that the court set a Mandatory Settlement Conference or trial (this depends on what’s been done in the case to date). Note, judges are under relatively strict “orders” to make sure cases get concluded in a timely fashion. There is nothing prohibiting the judge from hauling everyone into court and setting deadlines, etc.”
California has a six-month waiting period for divorces, regardless of how complicated the divorce is – whether contested or uncontested. While you and your spouse will ultimately be the ones determining how complicated your divorce gets, at a minimum it will take six months for a court to restore your status as a single person.
Before your status is restored to “single,” you will not be able to remarry or file taxes separately.
“Ultimately, there are a series of laws that allow the court to “fast track” a case, set discovery deadlines, etc. This is probably Maria’s best course of action. They can mediate the case, hire a privately compensated judge (usually a retired judge) to handle the case (which will certainly speed things along), etc. They would both have to agree to this course of action, however,” says Wilkinson.
If you and your spouse are able to come to an agreement, it is in your best interest to do so to save time and legal fees.
In Contempt of Court
If you are dealing with a spouse that is still not able to agree to your divorce, there are still further actions you can take.
“If Arnold continues to drag his feet, Maria could tell the court that Arnold is failing to participate after filing his response to the petition. The court can then do a number of things to get him to participate, one being finding him in contempt of court. She could also file a request for Order for sanctions on Arnold for various reasons if he is not complying with certain statutory timelines, etc,” says Kampf.
While most spouses are able to resolve their issues, there are still always those “unicorn” cases.
“Believe it or not, no this is not that common. A true default case rarely happens unless parties have zero assets and no kids. The latter case is even more rare, when a party responds to a petition or participates for a bit and then disappears. This is because the court has the power to punish someone for failing to participate (after their initial filing) by ordering sanctions, or finding someone in contempt for ailing to abide by court orders. They can also move the case along without the party participating,” says Kampf.
Working with a Divorce Attorney
If you are facing a divorce, you should work with a divorce attorney that will take a vested interest in your specific situation and advise you on what you might face in a divorce regarding property division, child support and custody, and alimony. They will be able to advise you on your options. A divorce attorney will provide support and guidance as you work towards ending your marriage. Working with an attorney can also be helpful if the divorce agreement is not adhered to. Having everything legally determined means there is a creation of a binding document that both spouses much adhere to. This means that if the divorce agreement is violated, you have legal backing to pursue legal action against the delinquent spouse.
For advice on divorce, you need the expert law firm of Law Offices of Korol and Velen, Certified Family Law Specialists.