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11 Oct 17

Can I refuse to go through with a divorce?

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Prior to 2010, when one New York spouse wanted to get a divorce, and the other did not, it was a complicated situation. Things have changed. The state adopted the legal concept of no-fault divorce in 2010. Since that time, all states and the District of Columbia have adopted the legal concept of no-fault divorce. This means one spouse can tell a court their marriage is no longer working and request a divorce. The other spouse no longer has a way to stop the proceedings.

Inevitable
It’s important a spouse try and to reason with the other spouse concerning the divorce. The spouse not wanting a divorce needs to understand how it is inevitable. The spouse resisting the divorce may not think the other is serious. They may want to try to have another round of marriage counseling. The spouse that wants the divorce needs to explain how this is going to cause serious harm if they don’t accept the reality of the marriage ending. In many cases, a spouse may need time to mentally and emotionally process the divorce before agreeing to it. When this doesn’t happen, and a spouse still refuses, there are steps that can be taken to move forward with divorce proceedings.

Under Oath
One spouse can deny the grounds for the divorce put forth by the other spouse. It is possible for them to disagree on basic issues covering the dissolution of their marriage. A New York court will honor the grounds for divorce if the spouse requesting the divorce is willing to state them under oath. The New York fault grounds can also be used. These are such things as cruel treatment, adultery and more. When a New York fault ground is used, they will have to prove these incidents occurred. The other spouse also has a right to try and disprove these allegations.

No-Fault
It is possible for a spouse to file for a no-fault divorce. This is possible if either spouse believes the marriage has been irretrievably broken down for a minimum of six months. It is not necessary for the couple to be separated for this period of time. One spouse just has to allege the marriage has been irretrievably broken down for this period of time.

Rules for Service
In the state of New York, when a person files for divorce, they must serve their spouse with a copy of the complaint as well as an Affidavit of Service. Should a person suspect their spouse won’t accept these papers, they can have them delivered by a professional process server. People hope their spouse will simply sign the affidavit and acknowledge receiving the divorce complaint. When a spouse doesn’t want the divorce, they may refuse to sign anything. In this situation, a process server can complete the Affidavit of Service. They will state the papers were given to a particular spouse who refused them. An Affidavit of Service completed in this way can be filed with a court. A judge needs to be informed the spouse avoided receiving the service. When this happens, a judge can authorize service using another method. It could involve publishing the notice in a local newspaper. This will enable a person’s divorce to proceed.

Default
Should a person be successful in serving their spouse with a divorce complaint, they are given 20 days under New York law to respond to it. Should they not respond, this will hurt the spouse refusing the divorce and not the one requesting it. If no response to the divorce complaint is received within forty days after the legal deadline expires, a spouse can request a court grant them a divorce. This is known as divorce by default and can happen without the other spouse’s cooperation. A court will do this because the spouse has not shown any interest in taking part in the divorce proceedings. The person filing for divorce will usually get what they asked for in the complaint because their spouse has not provided any objection to it.

In the state of New York, it is possible for a person to divorce a spouse without their spouse’s consent. If they contest the divorce, and force issues to be litigated, it won’t stop the divorce from occurring. The a spouse who doesn’t want a divorce can do is delay it. The divorce will eventually happen one way or another.

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