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Can my spouse prevent me from getting a divorce by ignoring it?

Daniel E Clement
Profile Picture of Daniel E Clement

Daniel E. Clement is a divorce and family law attorney who has been practicing since 1986 and blogging at the New York Divorce Report since 2006. Daniel uses his in-depth experience to provide sensitive representation for his clients during an emotional and challenging time in their lives. Daniel writes and lectures on family law issues, and he is sought after as an expert in the field by print, television and radio journalists. He represents a wide range of clients frequently needing help with a divorce or a pre-nuptial agreement. Daniel focuses on educating his clients on family law so they're empowered to make decisions and understand what they're owed. Full Bio

Q:Can my spouse prevent me from getting a divorce by ignoring it?
A:So, you want to be divorced. Your spouse is clueless of your feelings, in denial, or just wouldn’t agree to a divorce. Are you out of luck, stuck in your marriage or can you extricate yourself and obtain a divorce in New York?

Since the advent of no-fault divorce in New York, your spouse cannot unilaterally prevent you from be granted a divorce. New York courts take the allegation in the complaint that "the marriage has irretrievably broken down with no chance of reconciliation" as presumptively true. Provided economic issues and child custody are resolved a divorce will be granted.
When a spouse actively contests a divorce most cases are resolved and few require a trial of all issues. Absent a legal issue or expert opinion regarding asset values, most equitable distribution issues can be resolved through negotiation. Child custody and access schedules present thornier issues that may require court intervention.

If a spouse does not appear in a case, a divorce can be granted on default.
When the other spouse is deliberately dis-engaged from the process, i.e. repeatedly appears in court without an attorney, claiming to want one, but refusing to retain one, presents a more frustrating problem. Strict adherence to the procedural rules and consistently pushing the case along will ultimately result in a judgment of divorce. But, be forwarned, it may be slow going.

This question was originally posted at http://clementlaw.com/divorce/so_you_want_to_be/. The writer retains all copyrights.

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