Getting Divorced From an Unwilling Spouse in the State of New York
February 28, 2022|
By: Dilawar Fazal
Divorce is difficult. It can be even more challenging to go through a divorce if your partner is unwilling. Luckily, there are certain circumstances where New York state law allows for divorce from an unwilling spouse.
In the state of New York, you can get a divorce from an unwilling partner if:
- Your spouse does not to respond to the summon(s) or notice(s), or
- Your spouse’s whereabouts are unknown and they cannot be contacted.
You can obtain a divorce without your spouse’s consent in these situations through no signature required divorce, and divorce by publication.
RESIDENCY REQUIREMENTS BEFORE INITIATING DIVORCE IN NEW YORK
In most situations, either one of the spouses must have lived in New York for at least one year before filing for the divorce.
FILING FOR DIVORCE IN NEW YORK
The divorce needs to be filed before the Supreme Court of the state of New York. To initiate the legal action, the petitioning spouse must file a Summons with or without a complaint. The Summons informs the defendant spouse that they are being sued, whereas a Complaint lays out the specific details and reasons for the legal action.
If the Summons is filed along with a Complaint, then the defendant spouse has 20 days to answer the complaint. However, if a Summons is filed on its own, the defendant spouse has 20 days to file a Notice of Appearance, which informs the court that they will participate in the court process.
SERVING DIVORCE DOCUMENTS
To initiate divorce, the divorcing or plaintiff spouse must ensure that the legal documents for the divorce are directly handed to the defendant spouse. Spouses cannot serve the documents themselves, so they may serve them through a friend, a professional process server, or anyone who is at least 18 years old.
DIVORCE WITH NO SIGNATURE REQUIRED IN NEW YORK
To file a divorce in New York state, the divorce papers must be formally served to the non-filing spouse. The non-filing spouse must respond to the summons for the divorce process to continue.
If your spouse fails to respond to the summons within 20 days, you may move forward with divorce proceedings. The lack of a response from your spouse is considered a default divorce. However, for this type of divorce to work, your spouse must have properly received the divorce summons. Work with an experienced attorney to ensure that the Summons with Notice or Summons and Complaint are served correctly.
A default divorce tends to be favorable to the demands of the divorcing spouse. However, courts can reopen divorce proceedings in the future if the defendant spouse provides plausible reasons that they were not able to respond to the divorce papers.
DIVORCE BY PUBLICATION IN NEW YORK
If the spouses are already separated and the divorcing spouse does not know where to find the other spouse, you may be able to file for divorce by publication. This process can be relatively costly and time-consuming.
First, you will need to follow the court’s process to prove that you tried every possible strategy to find your spouse, and you must document that search. The court will need to review and approve of the steps you took to locate your spouse. Next, you must publish your divorce notice in the newspaper for three weeks in a court-designated newspaper. If your spouse does not try to contact you during that period, you can move forward with processing your divorce.
Your divorce may not qualify for divorce by publication or divorce with no signature required.
If your spouse responds to the divorce proceedings and appears before the court, then the trial will begin. The court will hear from both spouses before passing a judgment.
You can get a divorce from an unwilling spouse in New York, but it can be more complicated for the divorcing spouse. However, the spouse unwilling to respond to divorce filings exposes themselves to a greater risk – a court judgment that does not account for their needs and cannot be reversed except for exceptional circumstances. When facing a divorce, contact the experienced family law team at Chugh, LLP.
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