My Spouse Won’t Agree To A Divorce! Can I still Get One?
You may be done with your marriage, and you may have decided that your next logical step is moving on, finding peace and filing for divorce. But, what happens when your spouse disagrees with your plans? In New Jersey, can you still obtain a divorce even when your spouse clearly communicates that he or she does not want one?
The quick and simple answer is “yes!” In the Garden State, you do not need your spouse’s permission or cooperation to file for a divorce. They may indicate to you that they refuse to participate in the proceedings or tell you that they refuse to sign any papers. And, while that may make the process take a little bit longer, their refusal to cooperate will not stop the court from awarding you a final judgment of divorce.
What is most important if you find yourself in this situation is that your soon-to-be ex is properly notified that you have filed a complaint for divorce, or, in other words, that they have been properly noticed. How is this done correctly? Your spouse must be served with the summons and complaint in person. If you know where your spouse is located, he or she must be personally served in order for the court to rule that proper service of the papers has happened. You can have your spouse served by a professional process server or through the sheriff’s office where your spouse is currently residing. Once your spouse is served with the legal paperwork, an affidavit of service is filed with the court. This affidavit swears to the court that your spouse was personally delivered the paperwork.
If you do not know where your spouse is living, you can still properly get them the papers. You would have to ask the court for permission to serve them another way, such as through service to a friend or family member or through publication in a local newspaper. In this modern age, people are even serving their spouses via email and Facebook! Whatever your plan of action, if you are not planning to personally serve your spouse, you must get permission from the judge to serve them in an alternative format.
Once your spouse has been properly served, they have twenty days to answer your complaint for divorce and if they ignore the papers and refuse to answer, you can proceed without their participation. They will be found to have defaulted for failing to answer. The judge will grant to you a default divorce and you will send your final judgment via regular mail to your now ex-spouse. Again, in order for this to occur, you will need to prove to the judge that your spouse was properly served with the original papers.
If your spouse does respond to your divorce complaint either with a counterclaim or with an appearance form, your divorce then becomes contested and a bit more complicated. Even so, your spouse responding that they simply do not want to be divorced is not enough to stop the marital termination from proceeding. The only avenue that your spouse has, once the divorce has begun, is to have their position heard by the court with regard to the issues in your divorce, such as child custody, spousal support or division of marital property or debts.
So, regardless if your spouse is telling you that they refuse to “give you a divorce,” you are certainly free to go ahead and file your complaint at your local family courthouse. The procedures and paperwork can be a bit tricky, so strongly consider seeking the advice of a knowledgeable family law attorney in your area.
If you are ready to proceed, or if you have been served with divorce papers, please contact us to schedule your initial consultation with one of our experienced family law attorneys.
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