Brian D. Perskin & Associates

Non-Consensual Divorce?

Throughout each day, we receive numerous calls at the office from people asking questions about divorce—from how long the process takes to what to do if their spouse has left the state, etc. A common question we're asked is what to do if one partner does not want to get a divorce, or if they are out of touch with their spouse and unable to discuss and deliver the necessary paperwork.

Even if your spouse is unwilling to cooperate, you can still get divorced. According to New York state law, the defendant (the person who does not initiate the divorce) must be personally served with divorce papers, which includes the Summons with Notice or Summons and Verified Complaint. If you know your spouse's address, you can hire a process server to deliver the papers to him or her. Whether or not your spouse complies, the process server will sign an affidavit stating that he or she received the divorce papers, which enables you to proceed with the divorce even if it is not consensual.

If you do not know where your spouse is, you can hire a private investigator to locate them in order to deliver the paperwork. If you are still unable to find your spouse, the other alternative, although more expensive, is to do a divorce by publication. In a publication divorce, the Court enables you to publish a legal notice in the newspaper nearest to your spouse's location to notify him or her that you have filed for divorce. To initiate a publication divorce you would have to submit an application to the court for permission and pay a minimum fee of $5,000, in addition to paying for the newspaper's publication fees, which vary. Yet this costly, perhaps old-fashioned divorce option does provide a safety net, by enabling any individual, regardless of their spouse's whereabouts, to terminate their own marriage if they wish.

Ultimately, although not ideal, you can pursue a divorce regardless of whether or not you receive your spouse's consent. New York's divorce laws may be quirky, but they do, after all, protect individuals' right to make their own decision when it comes to pursuing a divorce.

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