Often, when a marriage is over, both spouses can at least agree on one thing: it’s time to get divorced. However, there are many times when one spouse may want a divorce, but the other wants to refuse – possibly for religious reasons, financial reasons, or emotional ones. Is it possible to get divorced without your spouse’s consent?
The answer is short: yes. But the process may be long.
A necessary component to seeking a divorce is to give the court a reason, or “grounds,” for your divorce. In 2010, New York became the last state in the country to allow for true “no fault” divorce. Prior to 2010, you needed to have a valid reason to seek a divorce, and if your spouse did not agree to the divorce, you would ultimately have to prove your reason to a judge. The potential reasons include cruel and inhuman treatment, abandonment, imprisonment, adultery, or living separately for six months or more. Since 2010, you can seek a divorce on those grounds, or you can simply state that your marital relationship has “broken down irretrievably for a period of at least six months.” If you swear to this under oath, your spouse may disagree personally, but legally there is no defense or challenge to a “no fault divorce.” You do not need your spouse to agree that a divorce is warranted.
Of course, the divorce process does not stop there – your divorce proceeding will also need to address the questions of custody and child support, if you have children, along with spousal support (alimony/maintenance) and distribution of your marital assets. If you and your (soon to be ex) spouse can agree on all these issues, you can both sign an agreement setting out the terms of your divorce.
However, if you and your spouse cannot agree, you will need to proceed with a trial, and ultimately let the judge decide.
If your spouse refuses to participate at all in the process, he or she will be in “default” and you can proceed in their absence. You will have to have what’s called an “inquest,” which is essentially a one-sided trial in which you can explain to the judge your circumstances. The judge will hear your testimony and consider your evidence; your spouse will not be able to submit any of their own testimony or evidence to contradict yours (however, your spouse can ask you questions on cross examination, if they decide to show up for the inquest). The judge will consider your testimony and evidence and will render a decision granting you a divorce and addressing all relevant aspects.
The law of New York State does not require any consent or permission from one spouse to allow an unhappy spouse to seek (and eventually obtain) a divorce. However, the process to finally get that signed judgment of divorce can be made quite difficult.
This is not intended to be legal advice; you should contact an attorney to discuss your specific situation.
Rebecca Johnson is senior counsel at J&G Law, concentrating in matrimonial and family law. She can be reached by calling (845)764-9656 or by email.