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Obtaining a divorce is almost always a difficult and complex process. This is especially compounded in the situation where the desire to divorce is not mutual between partners. In the event that one spouse wants a divorce but the other does not, is a divorce allowed? And how does the couple proceed? The answer to these questions depends largely on whether the couple lives in a "no-fault" divorce or a "fault" divorce state.
"No-Fault" vs. "Fault" Divorce
Each state's divorce laws will vary in terms of the requirements for filing a divorce. In general, the basic idea is that in a no-fault state, one spouse may file a divorce even if neither of the parties has committed a wrongdoing. In an "at-fault", or simply "fault" divorce state, the filing spouse must state specific reasons why the judge will grant a divorce decree. Here are some more features of no-fault and fault-based divorce options:
"No-Fault" Divorce: The main feature of no-fault divorce is that the filing spouse does not need to prove any "fault" or wrongdoing on behalf of either person. They need not show any breach of a marital contract or transgressions of the law. However, some states require the filing spouse to state that the couple is "no longer compatible" or has "irreconcilable differences". Also some states require that the couple be living apart for a certain period of months or years before they can file for no-fault divorce.
"Fault" Divorce: In this type of divorce, the spouse filing for divorce needs to show the other spouse was at fault in some way, either by breaching a marital contract or by certain actions, which may include:
- Marital unfaithfulness (adultery)
- Cruel treatment such as infliction of physical pain or emotional suffering
- Deserting the other spouse for a period of time
- Being imprisoned for a specified length of time
- Inability to physically consummate the marriage (if not communicated beforehand).
As you can see, it is generally much easier to file for divorce in a no-fault state.
Please take note that even if divorce has been filed in a no-fault state, it is common for the non-consenting spouse to take actions to delay the divorce proceedings. For example, they may refuse to sign required documents or even move their locations in order to make it difficult to contact them. So, while one spouse may be free to file the divorce papers, obtaining the actual divorce can be a lengthy process in itself.
Residency Requirement and Contestations
Whether the divorce is being made in a fault or no-fault state, one common administrative requirement is that the spouse who files for the divorce must establish that they are a resident of the state where they are filing at. The place of residence can make a huge difference as to the outcome of the case, since no-fault states are less strict than fault states with regards to their divorce requirements.
In addition to delaying the divorce process, the non-consenting spouse may often have the option to contest the divorce. This is usually the case in an at-fault state rather than a no-fault state. If the contestation is done in a fault state, the non-consenting spouse will usually have to show that they did not breach the marital contract or that they did not do the actions that place them at fault (such as adultery or cruelty). Many no-fault states do not allow the other spouse to contest a divorce once it has been filed.
More Issues- Notification and Publications
Another common issue that arises in non-consent cases is the issue of notification. All states require that the filing spouse employ their best efforts to notify the other spouse that they are filing for divorce. This is done by officially serving them papers which include notifications of the divorce. This gives them a chance to respond if contestation is allowed.
However, as mentioned before, it can often be the case that the other spouse cannot be contacted. This may happen for a variety of reasons; for example, if the spouse has moved and cannot be located. In such cases the courts allow what is called "notification by publication".
Notification by publication is where the courts allow a spouse to notify the other party that they have filed for divorce through a local publishing company, usually in the "divorce" section of a newspaper. The person must place the ad in the newspaper stating that they have filed for divorce, and the other party usually must be named. The person filing is required to wait for a period such as 30 days for the other spouse to respond.
If the non-consenting party does not respond to the publication, the filing party then obtains a letter from the newspaper verifying that the ad was in fact posted for the required time. The letter is submitted to a judge, who then continues with the proceedings. If the other party still has not responded, the judge will issue a default judgment, which will be sent to the other spouse. In such cases, the non-contesting spouse is not entitled to contest the default judgment, and the divorce will be final.
Conclusion- Some Points to Remember
As you have seen, filing for divorce is possible even if the other spouse does not consent. If you believe that you will be filing for divorce, it is in your best interest to retain a lawyer, who can assist you in preparing the necessary documents for filing in a timely manner. To recap, here are some points to remember when consulting with your lawyer:
• The biggest factor in filing for divorce is whether your state is a no-fault or a fault state. Check to see what type of state you live in and if there are any other additional restrictions
• If you live in a no fault state, inquire whether your state requires a period of separation before obtaining a no-fault divorce. New York is an example of a state that has such a requirement.
• Regardless of what type of state you live in, filing must be made in your state of residency in a timely manner
• The other party must be properly notified in order to be given an opportunity to respond or contest the filing if this is allowed.
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