Not knowing much about divorce laws, this got me curious in another thread. Can a person, upon being told their spouse wants a divorce, refuse to sign the papers or whatever?
Also I understand they can make it very difficult, by going to court and prolonging the divorce proceedings. But how do they do even that? Do they have to have some sort of basis for appealing; i.e., some idea that the assets were not split evenly? Will a judge listen?
Thanks ahead of time.
Before the adoption of no-fault divorce laws in most of the United States, a divorce would be granted only if one party was found at fault – faults included things like adultery. However, if the other spouse said (she) had forgiven the adulterer for (his) trespass, then no fault could be found, effectively blocking the divorce.
In a no-fault divorce system, however, I don’t think there is anyway for one spouse to effectively deny the divorce. Refusing the papers or whatever can result in a default judgment.
Couldn’t one party go to court to contest the divorce?
Claim, “Hey, I’m willing to put in the time and effort to make this work”?
New York is not a no-fault state. You have to have grounds for divorce, like cruel and inhuman treatment, abandonment, adultery, imprisonment of one party for 3 or more years after the marriage, etc. The only way outside of fault is separation pursuant to a judgment of separation or a signed separation agreement. (http://www.womenslaw.org/NY/NY_divorce.htm)
To illustrate a case from real-life: my cousin was married to a jerk. At some point, when their daughter was young, my cousin took the child and left her husband. He refused to sign a separation agreement. She had no grounds to divorce him (she abandoned him, right?) so they stayed married for over a decade until she died.
Many states are, as ascenray notes, no-fault states. There’s a handy chart on findlaw.com regarding the number of no-fault and fault states and what they require: http://family.findlaw.com/divorce/divorce-process/divorce-fault(1).html
But if abandonment is considered grounds for divorce…oh, I see, she abandoned him, so she couldn’t ask for a divorce and he wouldn’t ask for one.
Hmm. I can’t say I see the point of not having no-fault divorce then, other than nanny state trying to ensure we all stay married no matter what.
I think it was meant to ensure that people can’t abandon the people they swore to be with through sickness and in health and all the rest. That is, if you can’t divorce as easily*, then fewer couples are likely to divorce, which means (historically) less women and children on the dole.
*Most *contracts require both sides to agree to renegotiating or breaking, don’t they?
*Either through no-fault or without the consent of both parties.
Renegotiation requires agreement, but not breach. Anyone is free to breach a contract. In almost all cases, the only remedy for breach is damages. Generally speaking, you can’t force someone to perform if they don’t want to, but you can make them pay. The difference in a fault divorce system is that you were forced to perform, and you didn’t have the option of just paying damages for breach.
This only works in a fault system.
In a no-fault system, contesting the divorce means contesting the terms of the settlement (who gets what).
But even if you breach a contract, the contract is still legally valid. For example, if I don’t pay on my credit card, and I have no money, then typically they can’t collect. I have breached the contract, but it is still valid.
In the same way, in a fault-only divorce state, they can’t make you live with, sleep with, or care about the other person, but they can still consider the marriage contract valid even though you have breached it…
Terminology point that might help to clarify the question: spouses don’t have the power to grant a divorce - only the court can grant a divorce, legally ending the marriage.
Spouses can agree that they will both support the application for a divorce, or one can file and the other can choose not to contest it. There again, it’s the court that grants the divorce.
Since the termination of the legal relationship is done by the court, in most situations, both no-fault and fault, one spouse cannot unilaterally prevent the divorce from occurring, if the other spouse can show that the legal grounds exist. In a fault system, it may be a bit more difficult for a spouse to show that the legal grounds exist (see Ceejaytee’s example), but if the spouse applying for the divorce can show those grounds exist, the other spouse cannot usually prevent the court from granting the divorce.
Not quite the same thing, but I understand Ted Kennedy’s wife refuses to do whatever she must do to let the RC Church grant an annulment.
You’ve got it backwards. A contract has to be valid before it can be breached. Once it is breached, a court may award money damages, but except in very special circumstances, cannot award specific performance. Once the damages are paid, there are no further obligations under the contract. Generally speaking, you cannot make someone adhere to a contract that they no longer want to.
This is not a good example of breach and validity. If you fail to pay according to the terms of the contract, the credit card company can get a judgment and try to make you pay. Once the judgment has been awarded, however, that’s the end of it. They can’t get anything else except what the court has awarded them.
This makes no sense. In a fault divorce jurisdiction, several of these things – “live with, sleep with, or care about” – are grounds for divorce.
It depends who’s at fault. Until relatively recently in history, the “innocent” spouse *could *prevent the divorce.
Previous thread on this topic: Divorce question - Factual Questions - Straight Dope Message Board
Right - which is why I said in the next sentence:
The applicant for a divorce has to come within the legal grounds for it, and in a fault system, the “guilty” party did not have a right to a divorce, only the “innocent” party. If the “innocent” spouse did not wish a divorce, the “guilty” spouse had no right to it, as Ceejaytee’s example indicated - his relative had abandoned her husband, and therefore had no right to sue for a divorce. The husband, being abandoned by his wife, could have sued for a divorce, but chose not to do so.
Thank you. Having never had a divorce I didn’t know the proper terminology.
Thanks to everyone else for providing an answer. On to another question.
So if NY is not a no-fault state, are there any statistics on divorces that have been filed for (or whatever) and then refused by the spouse? Or do we not keep track of that sort of thing? How often does it happen, really?
Here are 2005 statistics for divorce by County and Grounds asserted: Vital Statistics - 2005 Annual Report
Not quite what you are asking for, but a start.
There are 5 cases of divorce-by-imprisonment in Albany County. And 134 cases on cruelty! I’m assuming the cruelty is because of battery and the like. Does imprisonment mean one or the other of the party is put in jail?
Still the majority - 193 - are “separation by agreement”. Thanks Gfactor - a very interesting table.
Prison for three years:
http://www.divorcenet.com/states/new_york/new_york_grounds_for_divorce
Not an answer to your question, but an interesting fact: in North Carolina, there are two grounds for absolute divorce, and one of them is incurable insanity.