How long does it take a divorce to become final if one party is refusing the divorce?
It can take an amazingly, shockingly long time.
One of the most frustrating things about this experience is that while you clearly have a stake in the expeditious outcome of your divorce action, you are not the only participant in the divorce process, and if the other participants do not share your desire to dispose of your divorce case as promptly as reasonably possible, you can often find the divorce process frustratingly tedious.
I’ve been involved in cases that have, despite my and my clients’ best efforts, dragged out for years beyond when they should have been set for trial.
Here are a few things that you can do to ensure that you are not contributing to the delays in your case:
Don’t keep hoping for a perfectly fair settlement;
I completely understand the desire to settle the case so that you avoid months or years of protracted litigation and or having to spend scary amounts of money preparing for and going to trial. but once you’ve gone to mediation once or twice, once you’ve exchanged multiple settlement proposals, and have nothing to show for it, then it should be clear that unless you roll over and settle on the terms your spouse dictates, your case will be going to trial. When she reached that realization there’s no point in putting it off any longer.
Sometimes it may be your attorney, not you, who is afraid to stop negotiating in a fruitless attempt to reach a settlement. Some lawyers are terrified of going to trial, so they might be the ones slowing the case down in a vain attempt to settle the case so that they don’t have to worry about preparing for and going to trial.
Bite the bullet and realize that preparing for and going to trial is expensive. For some people, the financial cost of preparing for and going to trial is more than they can pay. Some people literally cannot afford to go to trial. If you find yourself in that situation, and then make a settlement you know isn’t fair but one that you made because you had no other alternative, that’s a hard pill to swallow, but there’s little point in complaining about it; you did the best you could.
Make sure you have an attorney who doesn’t put up with the opposing parties and/or the opposing party’s attorney’s or even the court’s dilatory shenanigans. Your attorney cannot force your case to settle on your terms and timetable but can take steps to ensure that the opposing side and/or the court isn’t/aren’t delaying the progress of the case inexcusably. If your attorney is in this kind of attorney, fire him or her and get one who is.
Case files for child custody cases are classified as private and not accessible to the public, so unless the child is questioned in a public court proceeding (which happens so rarely one could honestly state that, statistically speaking, it never happens), we will never know (we can never know) what the child was asked or what the child said in response. Those judges who are willing to question children—as they are authorized by the Utah Code to do—almost never question children in public court proceedings but instead question them in chambers, although the questioning is conducted on the record and not covertly.
The law gives judges the opportunity to avoid hearing directly from a child by instead appointing an attorney for the children known as a “guardian ad litem” and thus avoid ever actually hearing any testimony from the child’s own mouth by having the GAL claim to have spoken to the child, albeit not on the record (and thus there is no objectively verifiable way to confirm this), to have elicited from the child his/her experiences, observations, feelings, opinions, and desires (again, without there being any objectively verifiable way to confirm this) and then, based upon literally nothing that is objectively verifiable, make recommendations to the judge as to how the judge should rule on the issue of the child custody award.
*The ostensible reasons that most judges give for refusing to question children or allow children to be questioned by an attorney or attorneys are that they:
A) fear that if parents find out what the child says, then the child may feel guilty for expressing a preference or preferences for one parent over another on particular subjects of parental abilities and fitness;
B) fear that once parents discover what the child had to say the child may be punished or retaliated against if what the child said upsets or offends one or both parents; and/or
C) conclude, without first questioning the child, that children in general are incompetent witnesses and that their testimony would be of little help to resolving child custody questions.
Here is why I assert that such reasons are not rational:
1) First, parents are going to find out what a child thinks, feels, and wants with regard to child custody irrespective of whether the judge questions the child in court proceedings. Parents are going to learn of this (whether directly from the child or from his/her siblings, extended family members, friends, neighbors, teachers, counselors, coaches, ministers, etc.) before the child custody case is filed, during the pendency of the child custody case in court, at trial, and after the trial. It’s unavoidable. It’s inevitable. I submit that i) the belief that not questioning a child about his/her opinions and preferences regarding child custody will prevent the child’s parents from discovering those opinions and preferences, and ii) the believe that the only time and place in which the child will express such things is when questioned by the judge, is rather naive; it’s impossible to prevent parents from learning this information from and about the children.
Second, the value that many judges place on preventing children from feeling guilty or uncomfortable is misplaced. For two reasons. One, children who are going to feel guilty and uncomfortable about their child custody preferences, who are going to feel as though they are betraying a parent by expressing a preference for one over the other. are going to feel that way regardless of whether they express those preferences to the judge or a custody evaluator or a guardian ad litem (GAL). Two, getting to the truth about how children feel and why—when it comes to their child custody preferences—is far more important than sparing them from feeling guilty (especially when we already know they’re going to feel guilty regardless of whether they testify). Otherwise stated, preventing child testimony does no good: it protects the children from nothing, while denying the judge the clearest, purest sources of information about the children’s experiences, observations, feelings, opinions, and preferences as they relate to the child custody award.
2) If the judge believes that children will not be punished for expressing a preference for one parent over another, so long as those preferences are not expressed to the judge, again, that’s not rational either. It is impossible for a judge to prevent parents from learning a child’s feelings, opinions, and preferences regarding child custody. Thus it is impossible for a judge to prevent a parent who gets upset by those feelings, opinions and preferences from learning about them and from punishing and retaliating against his/her child once he/she learns of them. A judge can’t even mitigate the amount and severity of the retaliation and punishment because the judge is powerless to prevent the child’s feelings, opinions, and preferences from being discovered. And so once again, we find the court depriving itself of one of the clearest and purest sources of information and guidance on the subject of thee child custody award based upon a fear and a belief that has no rational basis. Closing one’s ears and eyes to what a child can say on the subject displays, frankly, a shocking disregard for the best interest of the child.
3) Concluding, without first questioning the child, that children in general are incompetent witnesses and that their testimony would be of little help to resolving child custody questions. See self-fulfilling prophecy. While it is certainly true that some children may be, for various reasons (such as being too young to talk, too young to have a consistent and reliable understanding of right and wrong and truth and falsity, placed in circumstances that call the veracity or credibility of the child’s testimony into question from the outset, etc.), one sure way to guarantee that we never determine how informative, probative, and reliable a child’s testimony may be and what weight to give such testimony is to dispense with allowing the child to testify in the first place.
Utah Family Law, LC | divorceutah.com | 801-466-9277