A divorce can be either uncontested or contested. When your spouse refuses to sign the divorce papers, you can proceed with a contested divorce, and either a judge will decide the issues, or you and your spouse will finally come to an agreement during the process.
An uncontested divorce is always smoother, less emotionally draining, and more cost-effective. No matter which path you end up on, the result will be a court order that will be enforceable for years to come, so it is important to get it right with the help of an experienced divorce attorney.
Contested v. uncontested divorce
The outcome of a divorce is a division of assets and property and legal rights and responsibilities. A divorce is granted once the parties agree– or a court decides upon– all of the necessary divisions including:
- Financial assets
- Child custody, support, and visitation
- Spousal support
When the parties can agree on all these details, they can file the required paperwork (a petition and response) and proceed with an uncontested divorce. The judge will review their written agreement, issue an order to make it enforceable, and enter a divorce decree.
Though an uncontested divorce is smoother than a contested divorce, it is still important to work with a skilled family law attorney. The agreement will be binding in the long term, so you need to make sure your rights are protected before it is finalized.
When the parties cannot agree to the terms of a divorce, or when only one spouse desires a divorce, the proceeding will be considered “contested.” If you are in this position, you will need to go through litigation in family court and ultimately participate in a hearing. Based on the evidence presented, the court will determine the basis for the divorce and the terms of the divorce decree.
State differences when only one spouse wants a divorce
Each state has its own rules when it comes to obtaining a divorce without the cooperation of your spouse. This can have a significant impact on your best strategy. Some key differences include:
Waiting period – Many states require that the parties be legally separated or live apart for a specific length of time before obtaining a no-fault divorce, but there is no waiting period for a fault-based divorce. For example, in New Jersey, you must show that you and your spouse have been separated for 18 or more consecutive months or else state grounds of fault. In New York, when the parties agree to a separation, they may request a divorce after one year of living apart; if they do not both agree, they must live apart for two years.
Requirements for a no-fault divorce – Nearly half of the states no longer offer fault, such as adultery, extreme cruelty, or imprisonment, as a basis for divorce. In those states that do still offer both fault– and no-fault-based divorce, it may be advantageous to file for a no-fault divorce to encourage cooperation with a soon-to-be-ex. However, in New York and New Jersey, no-fault divorce is not formally recognized, so a spouse instead needs to state that the marriage has been “irretrievably broken” or the couple has experienced “irreconcilable differences” for at least six months.
Residency requirement – State law determines how long you must be a resident before filing divorce papers and whether exceptions apply. Most states require that the person requesting the divorce reside in the state for some time, usually between 60 and 180 days, before filing, though several states have no residency requirement.
Availability of default – If your spouse fails to respond to the divorce papers, whether they refuse or cannot be located, you may be able to pursue a divorce decree based on a default or grounds such as abandonment. In this case, the court may enter an order based on your proposed judgment.
Speak with a divorce lawyer
The stress of the divorce process can make it seem longer than it is. However, what happens in that relatively short time will impact your rights and responsibilities for years to come unless you go back to court to fight for a modification. With all that is at stake, it pays to work with an experienced professional. If you are considering your divorce options, speak with a family law attorney at Kantrowitz, Goldhamer & Graifman today.