Divorce Waiting Period: How to Shorten or Waive the Mandatory Delay

The mandatory divorce waiting period serves the legislative purpose of ensuring that both parties have a genuine opportunity to reconsider the decision to divorce before the marriage is permanently dissolved, and in most states the waiting period begins to run from the date the divorce petition is filed and served on the respondent, so the couple who wishes to minimize the total time from separation to final judgment should file the petition and complete service as early as possible. Cooling-off-period-divorce and divorce-law counsel can evaluate the specific duration of the mandatory waiting period applicable to the couple's divorce under the applicable state law, assess whether any of the recognized exceptions to the waiting period requirement apply to the specific circumstances, and advise on the legal steps required to minimize the time between the filing of the divorce petition and the entry of the final divorce judgment.

The waiting period is most productively used when both parties engage in the legal process of negotiating and documenting their agreement on all of the issues that must be resolved, including the division of marital property and debts, the determination of spousal support, the establishment of the custody and visitation schedule, and the calculation of the child support obligation, so that the divorce agreement is complete and ready for the court's approval on the day the waiting period expires. Divorce-mediation and collaborative-divorce counsel can advise on the specific legal obligations applicable to the parties during the mandatory waiting period, assess whether the couple has fulfilled the applicable counseling or mediation requirements, and develop the strategy for using the waiting period to negotiate the divorce agreement and complete required disclosures so the divorce can be finalized quickly after the period expires.

When the divorcing couple has minor children, the waiting period is typically extended to give the parents sufficient time to complete any required parenting education program, to attempt mediation of any unresolved custody disputes, and to negotiate a detailed parenting plan that addresses the children's physical custody, legal custody, holiday and vacation schedule, and the mechanism for resolving future parenting disputes. Divorce-during-pregnancy and child-custody-lawyer counsel can advise on the specific legal requirements applicable to a divorce involving minor children, assess whether the couple has completed the required parenting education class or custody counseling, and develop the custody and child support agreement that the court will need to approve before entering the final divorce judgment.

The table below identifies the four principal situations that affect the duration of the mandatory divorce waiting period, the standard waiting period applicable to each situation, the available waiver or reduction, and the required condition that must be demonstrated to obtain the shortened or waived period.

Domestic-violence-crime and divorce-due-to-domestic-violence counsel can advise on the specific legal grounds for requesting a waiver or reduction of the mandatory waiting period based on domestic violence, assess whether the available evidence satisfies the evidentiary standard required by the applicable state law, and develop the application strategy for obtaining an expedited divorce on domestic violence grounds.

The motion to shorten or waive the mandatory divorce waiting period must be supported by a declaration setting out the specific factual basis for the requested relief, and in domestic violence cases the declaration must be accompanied by supporting documentation such as a police report, a protective order, a medical record documenting injuries, or declarations from witnesses, and the motion is most likely to succeed when the supporting documentation is comprehensive. Divorce-filing-process and divorce-paperwork counsel can advise on the specific procedural requirements for filing a motion to shorten or waive the mandatory waiting period, assess whether the application satisfies the legal requirements for the requested relief, and develop the argument that most persuasively demonstrates the legal grounds for shortening or eliminating the waiting period.

During the mandatory waiting period, most states impose automatic temporary restraining orders that prohibit both parties from transferring, concealing, or disposing of marital property without the other party's written consent, from removing the minor children from the state without the other party's consent, from canceling or modifying any existing insurance coverage, and from taking any action that would interfere with the other party's rights in the marital estate. Family-court-litigation and family-law-litigation counsel can advise on the specific legal obligations that continue to apply to the parties during the mandatory waiting period, assess whether either party has violated the applicable restrictions on the disposition of marital assets, and develop the strategy for enforcing these obligations or seeking legal relief if violations occur.

The most efficient path to a final divorce judgment is for the parties to reach a comprehensive settlement agreement before the waiting period expires, because the court can enter a final uncontested divorce judgment on the first available calendar date after the waiting period ends if the parties have submitted a complete agreement that resolves all issues and the court has verified that the agreement is fair and reasonable. Uncontested-divorce and divorce-judgment counsel can advise on the specific legal requirements that must be satisfied before the court can enter a final divorce judgment, assess whether the parties' agreement on custody, child support, property division, and spousal support is sufficient to support an uncontested final judgment, and develop the strategy for obtaining the final judgment as soon as the waiting period expires.

The law firm's role in managing the divorce waiting period begins with a comprehensive assessment of the couple's specific circumstances, including the presence of minor children, the existence of any domestic violence, the complexity of the marital estate, and the degree of cooperation between the parties, and extends through the negotiation of the divorce agreement, the preparation and filing of all required disclosures and motions, and the finalization of the divorce judgment as efficiently as the applicable waiting period permits. Divorce and spousal-support counsel can advise on the full range of legal issues that must be resolved during the divorce waiting period, assess whether the temporary orders for spousal support, child support, and custody are adequate to protect the client's interests, and develop the integrated divorce strategy that most efficiently achieves the client's goals within the mandatory timeframe.