By Leslie Lorenzano
A common question parties in a family law matter ask is, “How long will this process take?” What often drags out the process is a Motion for Continuance.
Courts usually schedule a hearing simply by looking at its own calendar of availability. The court then sends out an order setting the hearing date and time to the parties and their divorce attorneys.
Thus, often a situation arises where either a party or his/her attorney has a scheduling conflict with the date selected by the court.
A common remedy to this situation is to file a Motion to Continue the hearing, which requests that the court reschedule the hearing for a new date and time.
This will usually result in a later hearing date than the one presently reserved, as the court’s calendar continues to fill up after your hearing was scheduled.
While having your hearing pushed to a later date can be frustrating, it could actually benefit your case in some circumstances.
Benefits of a Motion for Continuance
A continuance gives you and your divorce attorney more time to prepare for your hearing. This would include time to consult experts and possibly retain expert witnesses; obtain a professional appraisal on property or an evaluation on custody or parenting time issues; conduct a deposition for the opposing party or their experts; or simply have more time to develop your strategy and testimony.
These options can help you use the additional time to your advantage for your case, so that it is not time lost overall.
You can also use this time to attempt to negotiate a settlement or attempt mediation if you have not done so.
Settlement may not seem like an option in your case, but mediations have been able to procure settlement for highly-contentious cases. If you have the time, and the funds, mediation can help you try to settle your matter before the court hearing, thus ending the conflict on that day.
Even if mediation fails, you can still gain valuable information from mediation regarding the opposing party’s arguments that he/she will present in court, so that you can amend your strategy accordingly for the final hearing.
How a Continuance Could Damage Your Case
While both of the above circumstances can be used to gain benefit from a continuance, in some circumstances, continuing your hearing could be detrimental to your case.
For instance, if you are requesting a hearing on which school your child will attend in the fall, you don’t want to risk your hearing taking place after the school year starts if you can avoid it.
Some states’ courts require the party requesting the continuance to check if the other party objects to rescheduling the hearing.
If you are in a situation where a continuance would run the risk of harming your case, you can let the opposing party know that you object to the continuance. The party filing the Motion to Continue must include in his/her Motion if the other party does object. It will then be in the judge’s discretion whether to grant or deny the request to reschedule the hearing.
If you strongly object to the continuance and have unique reasons for objecting (i.e., the school example above or you allege a continuance would endanger your children for a specific reason), you can file a written Objection to the Motion to Continue, and file it with the court.
The court generally rules on continuances rather promptly, so if you intend to file a written objection, your attorney will want to work with you quickly to file before the judge rules on the Motion to Continue.
At the Cordell & Cordell family law firm, our team approach with multiple family law attorneys available can benefit your case if a scheduling conflict arises for your lead attorney.
Sometimes, so that we do not have to delay a hearing on your case that may result in negative consequences, we will check with the other attorneys in our office to see if someone is available to represent you at your hearing if we are unavailable on the date the court selected.
While we may try to avoid this for final hearings in your case, if you have a strong objection to continuing a hearing, many of our attorneys are available to jump in when needed and assist in litigating the case if there is a scheduling conflict for another attorney.
Ultimately, the judge may (and often does) grant the continuance over an objection if the party requesting the continuance has a legitimate scheduling conflict.
In some circumstances, such as emergency hearings, the court may still deny a continuance request even if there is a scheduling conflict if the court feels that continuing the hearing would possibly endanger children in the matter or cause undue prejudice against one party.
While you cannot always control how the court will rule on a Motion to Continue, the above information outlines your options for letting the court know your feelings on the Motion, and also provides you with information on making the best of a continuance if it is granted.