5/20/2014

What Can I Do If My Spouse Does Not Agree To a Divorce?

     Time and time again, we have heard one of two variations of this question during an initial consultation with a potential client.  Sometimes we are speaking with a person who made the difficult decision of telling their emotional spouse that they no longer want to be in their marriage.  The reaction they are met with is, “Well I won’t give you a divorce!”  And now they are in our office asking us what to do.  Other times, we have the understandably devastated spouse sitting in our office declaring, “Well what if I don’t give him/her a divorce?”  Our advice starts off with the same answer: In New Jersey, a person can get a divorce regardless of whether their spouse agrees with it or participates at all in the process.

     If you are the spouse who wants the divorce, your attorney will advise you on the best timing to file your Complaint for Divorce with the court.  Your spouse will have thirty-five (35) days to file a response.  If they do not, your attorney can file a request for a default to be entered in your case.  This is a relatively simple process in which your attorney provides proof that your spouse was properly served with the Summons and Complaint and that the deadline to respond has expired.  You will have to sign an Affidavit of Non-Military Service, in which you certify that your spouse is not on active duty in the military.

     The process of requesting a default is somewhat more involved if your spouse’s current address is unclear and/or if your spouse has evaded service of the Complaint for Divorce.  Your attorney will have to prove that other methods of service or attempted service were employed.

     Once a default is entered, your attorney will draft a Notice of Proposed Judgment.  This is basically similar to the Settlement Agreement that ends most divorces, except in the case of a default your terms are chosen and prepared solely by you and your attorney, because your spouse is not participating in the process.  Although in some ways, you are essentially “writing your own ticket,” the terms do need to appear to be fair and reasonable to the Court. 

     The final step is to appear in court for a Default Hearing.  With your attorney’s guidance, you will testify to the terms of your Proposed Judgment to satisfy the Court that it is indeed fair and reasonable under your particular circumstances.  Your divorce will be granted that day.

     Keep in mind that there are variations and other details of this process depending on the particular circumstances of your case.  For example, your attorney may advise you that subpoenas or other methods of discovery might need to be employed in order to gather more information about your or your spouse’s finances before the Notice of Proposed Judgment is prepared.  You will also need to file a Case Information Statement with the Court, wherein you must disclose under the penalty of perjury everything you know about your income, expenses, assets and liabilities. 

     Nevertheless, the point remains that if you want a divorce, you will get a divorce. 

     On the same token, if your spouse wants a divorce, then he/she will get a divorce with or without your consent.  As difficult as it is to let go of a marriage against your wishes, you will make your situation much worse by not participating in the process and having a judgment entered against you that was designed solely by your spouse.  Rather than attempting to “refuse” the divorce, consider meeting with a trusted therapist to work through your devastation, shock, confusion and/or disappointment and help you transition into the next chapter in your life.  You can also find several helpful books in the “Recommended Reading” section of our website.  We purchase these books for our clients as a courtesy to them to help them deal with the emotional and practical aspects of divorce.  We offer several children’s books on the list as well.

     Whether you are the spouse who wants a divorce or the spouse who is resisting it, our attorneys would be happy to meet with you to advise you on the best course of action for your particular circumstances.

Blog authored by Laura Ruvolo Lipp, Esq.