People arrive at the decision to end a marriage in different ways. For some the answer is as clear as the sky on a sunny day but for some it can be like trying to find your way in the black of night. Because the decision is overwrought with emotion and tension both parties may not reach the decision at the same time. But you know you want a divorce and you have made the wise choice of wanting divorce mediation to save time, money and make the process easier on you both and your family. But your spouse isn’t having it. They don’t want to get divorced. They don’t want mediation. They won’t even talk to the mediator to learn about the process.
So what happens then? What happens if you want a divorce and your spouse does not? What can you do?
Your emotions are running high. You’re annoyed and you just want to get this over with. You think, “I know, I will just file for a divorce.”
File for a Divorce. The Nuclear Button.
The truth this is that you don’t need your spouse’s permission to get a divorce. You have every right to hire an attorney and file a summons and complaint in court. Or you can even do the paperwork yourself just about every court has an office of the self-represented and you can find the templates for most documents on the courts.gov website. But I am definitely not advising you to do this- I am just saying that it is possible.
In New York, the Supreme Court handles divorce cases. The divorce paperwork should be filed in the Supreme Court in the county where the spouses live. To begin an action for divorce, the plaintiff must file a “Summons" or a "Summons with a Complaint:” legal documents, which notify the defendant an action for divorce has been initiated. A “Complaint” is a legal document that details the specific reason(s) for the divorce.
If a summons is served without a complaint, the defendant has 20 days to serve a “Notice of Appearance” on the plaintiff, which notifies the court of the defendant’s participation in the court process. Once the defendant appears in court, the plaintiff has 20 days to serve the defendant with the complaint. If the summons is filed with the complaint, the defendant has 20 days to answer the complaint.
In this situation you have begun the formal proceedings of divorce without your spouse’s permission. How do you think your spouse will react to the divorce being thrust upon them? How would you react?
Do you think they would be more open to mediation? Or do you think that they might get resentful and hire an attorney and suddenly you may find yourself battling in courts, spending thousands of dollars, drowning in stress and anxiety, lose control of the terms of the divorce – doing exactly what you did not want to do.
Or was this the last straw- the only way to get your spouse to pay attention to what you were saying? Were you left no choice but to go this route but now that you’re here you want to pull back and enter mediation? Can you still do that? Yes. Or have you dialed up the level of conflict already?
So how about we take a beat before we hit that nuclear button and try to communicate directly with your spouse to understand:
Why your spouse doesn't want to get divorced?
“I don’t want to get divorced because it will hurt the kids.”
This is actually almost the opposite of the truth but it is a concept that is ingrained in many people. Studies have shown that it is not the divorce itself that creates emotional trauma to the child but it is the degree of conflict between the parents. So if they’re watching you fight and yell or be indifferent to each other then ….you can fill in that blank.
“I don’t want to get divorced because we are not there yet.”
I have heard this from many clients. What this means is “I am not ready to get divorced.” There are cases in which a spouse may need time to emotionally process the idea of divorce. In these situations therapy is great option. If your spouse isn’t ready for a divorce, going to couple’s therapy can actually aid in the journey towards acceptance of divorce. It can allow time to process the state of the relationship and bring awareness to both spouses’ perspectives.
“We can’t afford to get divorced.”
Talk to your spouse about divorce mediation. How it is collaborative, faster and cheaper. How you are in control of the process and you make the decisions. How it is voluntary and you can walk away at anytime you want. How you both share one attorney mediator instead of two opposing attorneys. Please visit Why Mediation? and Divorce Mediation for further information.
“I am not getting divorced because we are from a traditional culture. And it’s just not done.”
This would be a good example to remind your spouse of the damage the level of discord is doing to the children and possibly also explore a mediated separation agreement instead of a formal divorce. Under a legal separation agreement all of the terms of a divorce would be addressed and you can remain living separate for a year and then file for a divorce based upon the separation agreement. You can also void your separation agreement by reuniting at any time. Sometimes this year and the non finality of a legal separation provides some comfort and ease to the reluctant spouse. And during that year maybe they can accept the change in the marriage.
If you’re ready to move forward or you need further advice you can call us to schedule a free consultation.