The easy answer is YES! However, as most individuals embarking on the divorce journey soon realize, there are very few easy answers. The same is true when it comes to the question of whether you need your spouse’s consent to get a divorce.
If you are reading this because you are concerned your spouse will not “give” you a divorce, stop what you are doing and breathe a deep sigh of relief you do not currently reside in the United Kingdom. While it my understanding that most divorces are allowed to proceed in the UK, A women by the name of Tini Owens, 66, was denied her application for divorce. She then applied to the Appellate Court to overturn the ruling by the family court that her marriage to her 78-year-old husband, Hugh, had not broken down irretrievably. This despite the fact that she had an affair and claimed that she was left trapped in a “loveless and desperately unhappy” marriage. The Court denied her application for a divorce because her husband opposed the same, on the grounds of unreasonable behavior. Surprising enough, her appeal was denied because the three appellate court judges found that it was not their place to instate “no fault” divorce, but up to the parliament to do so.
Don’t worry, New York and New Jersey are progressive when it comes to Family Law. While no one wants marriages to end, marriages are treated like any other contractual legal relationship, which often terminate. Both states understand that sometimes this is a unilateral decision, especially in cases of domestic violence and arranged marriage. As a result, both states will allow you to move forward with the divorce even if the other spouse does not want to.
In order to give a full explanation of obtaining a divorce without your spouse’s consent though, we must consider two alternatives, whether you are unable to get consent because you cannot serve your spouse or your spouse simply is against the divorce.
IF YOU ARE UNABLE TO SERVE YOUR SPOUSE:
While you do not necessarily need your spouse’s consent, oftentimes it is a much harder process when the spouse is non-cooperative, refuses to show up in court, evades service, has moved away leaving no forwarding address or simply refuses to participate.
In both New York and New Jersey you must serve your initially filed documents (Notice of Divorce) upon your spouse. As a party to the divorce, you must have someone other than yourself who is over the age of 18 attempt to serve your spouse. Both states require this to be done by in hand personal service upon them unless they consent to accept service or you prove that you are unable to serve them in person.
In those cases where you are unable to locate or serve your spouse, you must prove your inability to do so, which can be an arduous undertaking in and of itself. For purposes of proving your inability to locate and/or serve your spouse, you must document all of your steps taken to do so. In certain circumstances you must file an Affidavit of Due Diligence swearing to your attempts to serve your spouse at their last known residence on different days and times. When you succeed in proving to the court that you cannot find or serve your spouse, the court in most instances will grant you permission for what is referred to as “substituted service”. Substituted service is often service by publication. You will be required to publicize your divorce notice in a newspaper of your choice for several weeks. Once that has been done and your spouse has not replied, only then can you proceed with the divorce.
IF YOU ARE ABLE TO SERVE YOUR SPOUSE, BUT THEY FAIL TO ANSWER:
Also, in both New York and New Jersey, if your spouse defaults you do not need their consent to obtain a divorce. When the initially filed documents are properly served upon the other party, the clock starts ticking for that spouse to Answer. A certain amount of time to respond is dictated by the statutory laws of each state. If the other party does not respond within the allotted time, or properly request more time to do so, they are considered to be in default.
In New Jersey, if successfully served, your spouse has 35 days to respond. If they fail to do so for any reason, your next step is to serve your spouse with a notice of Equitable Distribution and Case Information Statement, which includes all of the issues you are requesting to be resolved by the court such as spousal support, child support, asset distribution, and any other relief you are seeking. These documents are also filed with the court. A date will be set for a final court hearing and notice of the date, time and place of the hearing will be served upon your spouse. Your spouse will have his or her final opportunity to appear and be heard with regard to all of the relief you requested. If your spouse does surprise you and show up at the hearing, as long as the Judge determines your requests are fair and reasonable they will most likely be granted. If granted, you will be issued a Judgment of Divorce incorporating the Case Information Statement and supporting documents.
New York provides a properly served spouse with 20 days to answer. If the Answer is not filed and served within the time limits prescribed by law, the Defendant is considered in Default. Thereafter, the spouse seeking the divorce must file an RJI (Request for Judicial Intervention) and Motion for a Judgment of Divorce on default. You will obtain a date for inquest from the Court, this is a date to appear and have a one sided trial where the Judge will seek all information regarding your assets, financial means, support needs, and any other relief that you may be seeking. As in New Jersey, the spouse that failed to answer must be served with notice of inquest and may appear to contest the relief that you seek. New York Courts are more patient with a defaulting party and will allow them full opportunity to be heard. If the Court ultimately determines that they are in default and that your requests are fair, reasonable and should be granted, once all final issues are resolved, the Court will issue a Divorce Judgment upon the other party’s default.
IF YOUR SPOUSE IS AGAINST THE DIVORCE:
The real issue is when the other spouse appears and contests the divorce. Many of our prospective clients wonder if a spouse can trap you in a marriage you simply do not want to be in, as in the UK case of Mrs. Owens. No! Both New York and New Jersey are no fault states. You only need one party to apply for the divorce and the Court will allow you to proceed. The other party may make the divorce extremely difficult and prolong the process, but at the end of the day (or years) you will obtain a divorce whether the other party consents or not. Phew!