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Can I file for a divorce even if he doesn’t consent?

October 10, 2017 Our Blog

There is a common misconception that both spouses must agree to a divorce in order for it to proceed smoothly. In fact, consent is never required in order to file for divorce. A lack of consent may make the divorce process more of a hassle, but it won’t delay the legal proceedings on the grounds of consent alone. A person is generally free to divorce his or her spouse at any time regardless of how the other person feels.

Filing the Petition and Serving

All divorce processes start with filing a petition for divorce. This petition outlines the reason for the divorce and the initiating spouse’s demands. They must then serve the divorce papers to their spouse by legal means. If the person knows where his or her spouse can be found, then it is usually easy to fulfill the legal requirements of serving the documents. If the spouse cannot be found, this is a little trickier, but it is still possible. The spouse can be served directly or by utilizing the sheriff’s service or a registered process server. Mailing the documents to a known address by certified mail also constitutes serving. If the spouse cannot be found and an address is not known, then some jurisdictions will accept publication in a local newspaper as fulfilling the legal grounds for service. Most jurisdictions require the initiating spouse make a concerted effort to locate their partner before declaring they cannot be found.

The other spouse does not have to agree with anything at this point. As long as the initiating spouse serves the documents properly, they have fulfilled their legal requirement. The other spouse does not have to accept the papers or even read them. Serving the papers triggers several legal steps to divorce. It is up to the other spouse how much they are willing to participate in this process.

Response to the Petition

Whether the other spouse agrees to the divorce or not, they will need to respond to the petition in order to participate in the divorce. Some people assume that if they ignore the divorce petition, then the divorce will be effectively stalled. This is not the case.

Once the documents are served, a deadline is set for answering the petition. A hearing date is usually set for sometime after this. If your spouse chooses to ignore the divorce and this deadline passes, you may attend the hearing yourself. If your spouse does not show, then the court generally considers the divorce uncontested. The judge will typically grant you whatever reasonable requests you have. The divorce must still be considered fair and equitable according to state laws even if it is uncontested. You probably won’t be able to convince the judge to give you 90 percent of the marital assets, for example, but you would likely get half and be able to pick and choose whatever you wanted.

If your spouse does respond to the petition and does not consent, this really doesn’t matter from a legal standpoint. Every person has the right to divorce. The legal process will proceed in basically the same manner regardless of your partner’s disposition.

Fault and No-Fault

Decades ago, all states required some fault or wrongdoing in order to file for divorce. If the other spouse didn’t agree, then the initiating spouse would have to prove this wrongdoing. The at-fault spouse would then get a lower share of assets during division as well as any other applicable penalties.

Today, the reverse is true. All states have some form of no-fault option. Spouses still have to give a reason for divorce, but they don’t have to prove fault. They may simply state “irreconcilable differences” or something similar. Many states still have a fault option, but it is a choice whether or not to file that way. If the spouse chooses the fault option, he or she will probably have to prove it.

In the modern world, how your spouse feels about a divorce matters very little from a legal standpoint. The process is identical regardless of consent, and ignoring the proceedings only jeopardizes a person’s interest in the divorce. So long as the proper paperwork is filled correctly, you could divorce your partner without getting them to agree or even interacting with them. It is important to consult with an attorney before making any filing decision to ensure that everything is done correctly and legally.


What Will the Judge Decide in My Divorce Case?

A divorce case may involve several elements, including division of property and debts, child custody, child support and spousal maintenance/alimony. Each aspect of a divorce is subject to specific laws that govern how a court is supposed to handle the issues. Divorce cases can be complicated and may involve important rights. Because of this, persons going through a divorce should seek legal representation from a divorce attorney.

In a divorce case, a judge may decide several issues, including the grounds for divorce, how property and debts are to be allocated, the amount of support to be ordered, and the child custody schedule.

Grounds for divorce
There must be a reason for a divorce to be entered. The most common reason is for irreconcilable differences or irretrievable breakdown of the relationship. A court may also enter a divorce on other grounds, such as adultery, fraud, abandonment, or cruel and inhuman treatment. The ground for divorce may be relevant in determining the division of property/debts and support.

Division of property and debts
In New York, marital property and debts are to be divided in an equitable, or fair, manner. This does not necessarily mean that property and debts will be divided equally. The judge can consider various factors in determining how property and debts are to be divided, including:

  • Each spouse’s income and property
  • The length of the marriage
  • Spouses age and health condition
  • Child custody situation
  • Fault or wrongdoing of a spouse
  • The liquidity of assets in the divorce
  • Ability of each spouse to meet their needs
  • Tax consequences to each spouse
  • Earning capacity of the spouse
  • Education and employment history

The judge can consider any factor that is deemed relevant to the divorce.

Property owned by a spouse prior to the marriage, received as a gift, inherited, or related to a personal injury settlement, may be considered as that spouse’s separate property and not included in the property division.

Child support and alimony
A judge may also decide the amount of child support and alimony to be paid. Child support in New York is based upon the number of children, the custody schedule and the income of the parents. The specific amount is based upon a formula that considers these factors.

Alimony, or spousal maintenance, may be ordered by a judge in certain situations where a spouse is unable to provide for their reasonable needs or requires compensation to arrive at a point where they can support themselves. A judge will consider many factors, including the length of the marriage, available assets, earning capacities of the spouses, and presence of any wrongdoing in the marriage.

Child custody schedule
If the parties cannot agree on a child custody schedule, then a judge will make that determination after hearing evidence and argument from the parties. The law requires the judge to order a schedule that is in the best interest of the children.

In deciding custody, the judge must consider any relevant factor, including:

  • Wishes of each parent
  • Wishes of the children
  • Character and circumstances of each party
  • The need to promote stability and continuity for the children
  • Domestic violence
  • criminal activity
  • Substance abuse

Typically, absent extraordinary circumstances, the judge will order a joint custody schedule. This does not necessarily mean a 50/50 schedule, rather each party will have frequent and continuing contact with the children.

How can a divorce attorney help?
Spouses who are going through a divorce should seek out representation from a divorce attorney. An attorney can help advise you about the law and how the facts of your case apply. They can represent you in court and advocate on your behalf to the judge.

An attorney will understand the legal burdens of proofs and what needs to be shown in order to obtain your desired result. They can help you gather evidence to present to the court to address the various aspects of a divorce case.

Because persons who represent themselves in court are held to the same standard as an attorney, self represented persons are often at a disadvantage. By working with an attorney you will have someone in your corner who understands the law and knows what needs to be shown. Contact a divorce attorney to schedule a consultation if you are going through a divorce



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