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Blocking a Divorce
I can't stand my wife anymore and I want to get a divorce. Is there any way that my wife can block the divorce?
A prevailing "myth" that I often come across is that you need your spouse's consent to get a divorce. I am repeatedly surprised by the number of people who mistakenly believe your spouse's consent is required to get a divorce. This myth comes in many varying forms. The first common myth is that you can't get a divorce unless your spouse agrees to one. The second common myth is that you can't start the divorce process unless your spouse accepts the divorce legal paperwork. Finally, the third common myth is that you can't get a divorce unless your spouse signs the final divorce judgment. In New Jersey, all three of these misconceptions are myths and are simply not true! While your divorce may take longer and cost you more in legal fess if your spouse objects to it, your spouse simply can't stop you from divorcing her. If you truly want out of the marriage, and if you follow the correct divorce procedure, and if you file the necessary legal paperwork, then your wife can stop the divorce. In short, you can divorce your wife whether she likes it or not.
The above myths are misleading for several reasons. First, New Jersey is a "no fault" divorce state. This basically means that you don't have to prove any type of wrongdoing to get a divorce. All you have to prove is that you have "irreconcilable differences." The fact that you want a divorce and your spouse doesn't want one can be considered an "irreconcilable difference." Therefore, when someone objects to a divorce, the only legal rights she has are dispute the terms of the divorce. These terms may include custody, parenting time, equitable distribution. However, your wife can't dispute the divorce itself.
Can my wife block the divorce by not accepting service of the divorce legal paperwork?
No, your wife can try to drag out the divorce case, and slow down your case. However, ultimately your wife cannot block your divorce by not accepting service of the legal paperwork. To start a divorce case, New Jersey law requires you to serve your spouse with a summons and a divorce complaint. Your spouse can voluntarily accept the divorce complaint, or you can serve your spouse without her consent. If your spouse tries to avoid accepting service, then you can file a motion to obtain permission from the court to allow for "alternative service." If you are granted the permission to have alternative service, then you will be permitted to serve your spouse by mailing the divorce papers by regular or certified mail. Meanwhile, if you have lost contact with your spouse, and if you don't know where she lives, then you may be able to obtain court permission to permit you to serve your wife by publication. Basically, this means that you can publish a summary of the complaint in the classified section of your local newspaper. Once it is published then you will obtain an affidavit of publication from the newspaper. Once you file this affidavit of publication with the clerk's office then this constitutes valid service. Unfortunately, you are required to file a motion to request permission to obtain service via publication. This can be a confusing and arduous task for pro se filers.
Does my wife has to sign the final divorce judge for it to be approved by the court?
Finally, your wife does not have to sign the final divorce judgment for it to be approved by the court. If your spouse won't cooperate, then you can still obtain a divorce by applying for a default. To apply for a default you will be required to submit a form called a request to enter default and sign a form that certifies that your spouse is not in the military service. If you have children and assets that you acquired during the marriage, then you have to also file a notice of equitable distribution with the court. Once these legal papers are filed, then the court will schedule a short hearing for your case. At this hearing, then the court will hear your case. Your spouse must receive notice of this court date. At this hearing, the court will decide your case, or attempt to convince the parties to reach a settlement.
In summary, if you are considering filing for divorce, and if your spouse tells you that you can't get divorced without her permission, then you should immediately consult with a family law lawyer. There is no New Jersey law that can stop you from getting a divorce. Your wife simply is feeding you wrong information to try to dissuade you from filing.
If the divorce is being filed under one of the seven fault grounds (including extreme cruelty, adultery, abandonment, substance or alcohol addiction, institutionalization, deviant sexual conduct and incarceration), the 18 month separation period, required for a no-fault divorce, is waived. However, each ground for divorce has its own stipulations.
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