Can You Still Get Divorced If Your Spouse Doesn’t Agree?
How to Divorce Your Spouse Without Their Agreement
With roughly 40% of marriages ending in divorce, it is incredibly common for a person to think about ending their marriage. However, you wanting to get divorced does not always mean your spouse does too. It’s still possible to get a divorce when your spouse does not agree, but the process can be slightly different.
Do You Need Consent to Divorce Someone?
Many people who are unhappy in their marriage worry about divorce because they think, “There’s no way my spouse will agree to a divorce!” This is a common misconception based on older divorce laws that required both parties to agree before a divorce. In modern times, almost all states do not require both spouses to agree to the divorce. If you are in New Jersey, you can get a divorce easily, regardless of whether or not your spouse agrees. To qualify for a divorce, all you need to do is meet these requirements:
- Be in a legally sound marriage.
- Fulfill the residency requirements for the state where you are filing for divorce.
- Have legally acceptable grounds to end your marriage, such as separation, adultery, abuse, or irreconcilable differences.
- Be willing to file the appropriate documentation with the court.
Being able to divorce without your partner’s agreement is very helpful. It ensures that one partner cannot trap another in an unhappy marriage. If you no longer wish to be married, you can exit the marriage without consent from the other party. Especially in situations where one partner is abusive or extremely codependent, being able to start the divorce by yourself is very helpful.
Understanding the Process for Divorce Without Consent From Your Ex
If your ex actually agreed to the divorce, the process can be as simple as just signing a few papers. However, when your partner does not want the divorce, the process will take a little longer. You can still get a divorce, but you will just need the court to grant you the divorce regardless of your partner’s opinion. The steps for filing a divorce in New Jersey are
- Formally file for divorce with the court. Your divorce lawyer can help you submit all the documents, including the formal divorce complaint and forms on child custody, asset division, and alimony.
- Request a summons for your spouse and get a sheriff or process server to serve your spouse with notice of the divorce complaint.
- Wait for your spouse to file their own response or counterclaim. As long as you have legal grounds for divorce, they cannot deny the divorce itself. However, they can argue for different custody and property division terms. If they do not respond within 35 days, you can ask the court to grant a default judgment in your favor.
- Once the court grants the default hearing, your spouse will be legally informed and have more options to show up and request certain property division, custody, or alimony options.
- On your court date, the judge will hear your case for divorce. If your spouse does not show up, the judge will usually accept your preferred property division and custody plan, as long as it is reasonably fair.
- Following your divorce hearing, you will be officially divorced, regardless of whether your spouse consents or not.
Which Type of Divorce Is Best When Both Spouses Don’t Agree?
As you can see, it is still possible to get a divorce even if your ex does not want to be divorced. All you need to do is show that you meet one of the legal grounds for New Jersey divorce. There are all sorts of reasons the court will allow you to end your marriage, including the simple fact that you no longer want to be married. Your grounds for divorce will usually affect the type of divorce you get. However, your spouse’s refusal to agree to the divorce may slightly limit your options.
The simplest option is often a no-fault divorce. A divorce without fault allows you to divorce without having to point fingers at either member of the couple. You can get this type of divorce after living apart separately for 18 months or after having irreconcilable differences for at least six months. Technically, it is still possible to get this type of divorce without your spouse’s agreement. However, some people may find it challenging to go through the waiting period with a spouse who still wants to be married.
If you do not want to wait and cannot get your spouse to go along with the basic guidelines of a no-fault divorce, you can go for an at-fault divorce. In an at-fault divorce, there is no waiting period. As soon as one of the grounds for fault occurs, you can get a divorce. Furthermore, officially showing one party was at fault may allow you to get more favorable property division, alimony, and child custody rulings. Some grounds for at-fault divorce include
- Desertion of 12 months or more
- Deviant sexual behavior the other party does not consent to
- Mental or physical cruelty
- Substance abuse problems that last 12 months or more
- A jail sentence of 18 months or more, starting after the beginning of the marriage
- Institutionalization for mental illness that lasts 24 months or more
How to Get Satisfactory Results When Your Spouse Doesn’t Consent
Having a divorce without consent is possible, but it can be difficult. You might end up waiting a longer amount of time, having to hire private investigators and process servers to track down your spouse, and needing to file extra forms with the court. Though your spouse cannot entirely stop the divorce, dragging their feet can be an effective way of delaying and annoying you. To get the best possible outcome in your divorce, here are a few tips to consider trying.
- Make sure you select a good divorce attorney instead of trying to do everything yourself. The extra paperwork can be confusing for someone without a legal background.
- Try suggesting alternatives like mediation or therapy with your partner. This can help them realize that a divorce is the best option for your family.
- Move out as soon as possible so that you always have the option of eventually filing for divorce due to separation.
- Be willing to admit if you were at fault, such as cheating on your partner, since this can let you file for an at-fault divorce.
- Try to be reasonably fair in your requests for property division, custody, and child support. Though judges usually rule in favor of the person who shows up for the divorce hearing, being completely unreasonable can cause delays in your hearing.
- Be patient. It’s frustrating having a partner who won’t agree to divorce, but ultimately, there’s nothing they can do to prevent it.
When you are dealing with a difficult ex, it is important to have a talented divorce lawyer on your side. At the Law Office of Kelly Berton Rocco, we provide aggressive yet compassionate representation. Our team will help your divorce go as smoothly as possible even if your ex is being stubborn. To discuss your situation and learn more about the New Jersey divorce process, call our Hackensack office at (201) 343-0078 or email us now.