Are there? A typical cause of action for a no-fault divorce in most areas of the US seems to be that the spouses have lived separate and apart for at least a minimum time (defined in statute, which could be 6 months or a year) and that the the marriage is considered irreparable.
Are there any defenses available for a defendant whose spouse is suing them for no-fault divorce but where the defendant would like to remain married, for example when one spouse wants to preserve the marriage while the other one wants out now?
I went through the court documents pertaining to the divorce of someone I know well, and part of the trial included one of their neighbors (I was not asked to participate) getting up on the stand and testifying that it was their good-faith belief that the marriage could not rationally be healed. Is it possible for a dissenting spouse to attack this testimony by either directly attacking its reliability or by countering with testimony that someone else things the marriage can be healed to such an extent that the court could rationally rule that the plaintiff has not proven their case?
I am primarily talking about stopping the divorce in its tracks by bolstering the defense’s case and casting doubt on the plaintiff’s rather than engaging in procedural delaying tactics such as filing frivolous motions that waste the court’s time but don’t enhance the defense’s case.
I have been told that a defendant spouse objecting to a no-fault divorce is considered in itself to be evidence that the marriage has broken down because the spouses can no longer agree on whether to remain married. Is this actually a real rule of evidence or legal principle?
This is out of curiosity and is not a request for legal advice. I am not going through a divorce.
IANAL, but I would think one side asking for a divorce, to the point of going to court, means that the two cannot agree they want to stay married.
The question really is - what can prevent a no-fault divorce? Presumably, only both sides saying they don’t want one, in which case, why is this in court? (Unless one person is perennially incapable of making a decision and sticking to it.) If the petitoning party has a flick-chick moment and changes their mind, then presumably the court would dismiss the case. But, I suspect one party cannot stop the process if the other wants it. The petitioner just has to show, it’s gone beyond the short fight, the typical “she stormed out last night and went back to her mother” and has in fact really broken down.
**IANAL, I just work for one. **
In California, at least, what you are suggesting is a great way to rack up legal fees, but not accomplish much else. If one party does not make a substantive response to a Petition for Dissolution of Marriage, eventually a Request for Default can be filed and a Default Judgment can be signed by the judge, ending the marriage.
You can drag your feet all you like, but it will only delay the inevitable.
What I’m wondering is if it is possible to introduce testimony to such an extent that the court would rule that the element that the marriage is irreparable has not been met, for example with testimony from the defendant saying that they are willing to continue to try to make it work or by the testimony of friends or family saying that, based on their knowledge of the couple, they still believe that reconciliation could reasonably happen, or by attacking the testimony of the other side by e.g. claiming that the testimony of irreconcilability is unreliable (e.g. because the person testifying does not know the couple well enough, is being paid to testify, is in love with the plaintiff, etc.). We aren’t talking either about non-substantive procedural delaying tactics such as objecting to every question or motion or talking about not showing up in court.
Even showing “she storms out every month but always comes back within a week” may not be valid. It just shows the marriage has a long history of being rocky; and presumably it’s been more than a week this time if the case has gotten as far as court.
What tetsimony would you present to refute the assertion that he marriage is effectively over? (Except maybe “he shows up for sex-with-the-ex action 3 times a week.”)
The whole point of a no-fault divorce is that both parties agree that they want to end the marriage. If somebody objects, then that’s all the defense you need.
The “no-fault” portion means that the parties don’t need to establish that there are grounds to justify the divorce (eg, adultery or “cruel and inhuman treatment”). In New York state, the parties can simply stipulate that “the relationship between husband and wife has broken down irretrievably for a period of at least six months.” (DRL §170.7)
Parties can agree to the divorce but still disagree on issues like child support and division of assets. I suspect this is the most common type of divorce case.
I am not a lawyer and this is neither legal advice nor a ham sandwich.
Are you sure it was a no-fault cause of action? Many states still have fault-based divorce alongside no-fault. Fault-based can be faster, so even if the spouses are on the same page, they can sometime choose to do it that way.
No, the point of a no-fault divorce is that the state does not find one of the parties to be “at fault” and therefore 1. the parties do not have to use legal fictions of co-respondents to demonstrate that something has gone wrong, and 2. that person’s share of the marital assets is not reduced.
There is no requirement that they agree they want to end the marriage. I’m sure a lot of divorces happen even though one of the parties wants to stay married, but because of the no-fault rules, they cannot disprove the other party’s desire to end it.
No-fault divorce allows either party to get out of a marriage without having to jump through the legal hoops of fault-based divorce that allowed the not at fault party to hold the at fault party to the marriage.
The parties agree that the marriage is irretrievably broken or
The parties have lived separate and apart for one year.
So, if one spouse wants to fight the divorce, he/she can disagree with #1 above and thwart the process. However, once a year has passed, the petitioning party can rely on #2 and obtain his/her divorce without the other’s consent.
And fighting #1 is a GREAT way to rack up legal bills. If the other spouse doesn’t agree with #1, then out come the fault-based adultery and cruel and inhuman treatment grounds!
In my jurisdiction, for this exact reason maintainance, child support and division of assets is done in different proceedings from the one which terminate the marriage. The official reason is the hope that a quick end to the marriage will convince the recalcitrant partner to come to a settlement on these issues as well.
Thanks - that answers the crux of the question - can one side stop the divorce?
However, I thought that the fault-based option requires that the petitioner have evidence the other spouse was at fault? You can’t say “Give me a divorce because I’m a cheating douchebag”. Rather difficult to get evidence unless the uncooperative spouse was really blatant about it; if they don’t want a divorce, you have to come up with the actual evidence the reluctant spouse is cheating or abusive; assuming it’s not fabricated and perjury.
(I remember an article by a divorce lawyer talking about the dark ages before no-fault; he mentioned the time they had to rush out and hire a prostitute and a photographer the morning of the divorce hearing because the previous photos had not developed properly. )
In the good old days of “at fault” divorce, only the wronged spouse could sue for divorce. That’s why you have all those movies where the guy complains that his wife won’t give him a divorce, even though he’s living with his new girlfriend. He can’t sue her for divorce because she hasn’t given any cause for divorce, and she won’t sue him. So he has to stay married to her. This is why people needed Philadelphia Lawyers to get divorced.
Quebec has a similar law, except that in addition, pleading option 1 requires lawyers while option 2 can be done without. My ex and I agreed on a no-fault divorce based on the grounds that we’d lived apart for a year. With that clause invoked, the only money required was for filing fees and the cost of getting official documents (about $300 IIRC). (Time spent off work and waiting in lines at the courthouse not included.) There were forms provided for filing jointly or singly (in case one spouse was uncooperative.) I can’t imagine there’s any way for one party to object to this, unless he or she presents evidence that the parties are still living together, which seems highly unlikely.
It is worth pointing out that this varies considerably from state to state. In my own state of Colorado the only thing you need to get a divorce is for one of the parties to file. There is no necessary separation. And there is no need for agreement from the other party. The 2nd party can fight everything else, distribution of assets, support, etc. But the basic, “Can I get a divorce?” question is automatically answered yes.
In my state, a no fault divorce is decreed when the marriage “has become unsupportable because of discord or conflict of personalities that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation.” The only defense to a divorce petition based on insupportability is an assertion that there is a reasonable expectation that the parties will reconcile, but as a practical matter good freakin’ luck selling that one. A lovesick soon to be ex-spouse could theoretically force the other side into some sort of marital counseling before a decree is granted, but if the other spouse has made up their mind they’re only delaying the inevitable. As of last time I checked nobody had ever gotten a divorce decree reversed on appeal by attacking insupportability and claiming a reasonable expectation of reconciliation, and I doubt that’s changed.