In most divorces, both parties agree that the relationship is over. Divorces will not be granted until an agreement or a court resolution of questions concerning division of property, custody over children, alimony, and child support. But what can you do if only one of the spouses wants to terminate the marriage?
Reasons Only One Spouse Might Want to End a Marriage
There are many reasons that only one spouse may want a divorce, one being that they have children, and one spouse believes it would be best for the kids if they remained married. A spouse might also want to remain married for financial reasons, or because they still love their partner and want to save the relationship.
It is important to understand that you do not necessarily have to be on the same page as your spouse in order for one to pursue a divorce. While a divorce where both parties are on the same page is often less combative and time-consuming, a contested divorce is still a viable option for spouses who cannot agree.
Fault or No-Fault Divorce?
Divorce law in New York acknowledges fault and no-fault grounds for divorce. You may seek a no-fault divorce in New York if there has been an “irretrievable breakdown of the marriage” for at least six months. Spouses may also pursue a divorce after being in a separation agreement and living apart for at least one year.
a fault-based divorce, a spouse must prove their partner is to blame for the marriage’s breakdown. In New York, the courts recognize the following fault-based grounds for divorce:
- Abandonment for one or more years
- Cruelty (including physical and mental abuse)
- Imprisonment for three or more years
After you file for fault grounds, your spouse will be served with divorce papers. Your spouse cannot refuse to be served, even if they do not agree with the divorce. After that, your spouse will have 30 days to respond to the complaint. If they do not, you can request that the judge grant you a divorce by default.
Can I Still Get Divorced if I Cannot Locate My Partner?
You are still able to file for divorce if you are unable to locate your partner. First, you or your attorney must make a diligent and reasonable efforts to locate and serve your spouse. If you are still unable to find your spouse, you may file a Motion for Alternate Service of Process. Oftentimes the court will grant permission to publish a summons, asking your spouse to come forward and respond. The summons must run for 28 days, and your spouse has 30 days from the final publication date to respond. If they do not, you can request a divorce by default. A knowledgeable divorce attorney may help you understand and file these documents as needed.
Discuss Your Options with a Divorce Attorney
Divorce can be a tough to go through, especially if you and your spouse are not on the same page about your separation. Fortunately, you do have legal options if your spouse is being uncooperative. A dedicated lawyer may provide invaluable assistance during this time, protecting your rights and putting your best interests first. Call today to get started.