What Happens If My Spouse Refuses to Sign Divorce Papers?
Deciding to get a divorce is not an easy one, and to make matters more complicated, your spouse may not be so happy about it. As such, they may simply refuse to sign the final divorce papers altogether. So, what happens then?
If you want to get a divorce without your spouse’s signature, New York laws allow for you to enter into what is called a “default divorce.” A default divorce is sometimes referred to as a “no signature required” divorce, which occurs when the divorce petition is filed, the divorce notice is served, and the respondent (your spouse) fails to respond by the deadline. When this happens, a judge may treat the case as an uncontested divorce and continue processing the divorce as a result.
For background, an uncontested divorce occurs under the following circumstances:
- You and your spouse do not disagree over any financial or divorce-related issues (i.e., child custody, support, property division, or spousal support)
- Your spouse either agrees to the divorce or fails to appear in the divorce action (prompting a “default divorce)
With this in mind, we break down the uncontested divorce process below to give you a better understanding of what happens when your spouse refuses to sign the divorce papers. If you have any questions, we’re just a phone call away at (845) 605-4330!
Before you file for an uncontested divorce in New York, you must meet the residency requirement and have a “ground,” or reason, for the divorce. That said, you must meet one of the following criteria to satisfy the residency requirement for divorce in NY:
- Either you or your spouse has been living in New York State continuously for at least 2 years before the divorce case is started
- Either you or your spouse has been living in New York State continuously for at least 1 year before the divorce case is started and:
- you got married in New York State; or
- you lived in New York State as a married couple; or
- the grounds for your divorce happened in New York State.
- Both you and your spouse are residents of New York State on the day the divorce is started and the grounds for your divorce happened in New York State
New York statutes contain a “no-fault” ground for divorce. However, you can file for divorce on fault-based or no-fault grounds. A no-fault divorce occurs when there is an irretrievable breakdown in the relationship for at least 6 months. The other 6 grounds for divorce in New York include:
- Cruel and inhuman treatment
- Divorce after a legal separation agreement
- Divorce after a judgment of separation
If you don't meet the residency and ground for divorce requirements, you may not be able to get a divorce in New York.
A divorce case is started when the plaintiff files a "Summons with Notice" or "Summons and Complaint" with the County Clerk's Office. The plaintiff is the person who files for the divorce, while the defendant is the spouse whom the plaintiff wants to divorce. Your attorney can help you file the necessary paperwork accurately and in a timely manner to ensure you start on the right track.
As the plaintiff, you have 120 days to serve the defendant after filing the Summons with Notice or the Summons and Complaint with the County Clerk’s Office. Note that the defendant, your spouse, must be informed in person about your desire to get divorced in a process called “service.”
However, you cannot personally serve your soon-to-be-ex with the divorce papers. Instead, you must ask someone who is 18 or older to serve the defendant. After they complete the service, the person who served the defendant will complete what’s called an “Affidavit of Service” to prove that the papers were correctly delivered to the defendant.
After your spouse is served with theSummons with Notice or the Summons and Complaint, along with other necessary paperwork that your lawyer will help you with, they will respond in 1 of 3 ways:
- The defendant answers by filing an "Answer" with the Supreme Court and will serve you, the plaintiff, with the "Answer." As such, the divorce is now contested because your spouse disagrees with or wants to challenge the elements of the divorce. For this reason, you are encouraged to consult with a divorce attorney to get legal advice and representation as you move forward.
- The defendant signs the "Affidavit of Defendant," a form confirming that the defendant agrees to the divorce and does not argue with anything that is outlined in the Summons with Notice or Summons and Complaint. In other words, the divorce becomes uncontested, then you can move to step 4.
- The defendant does not respond in any way, meaning that they have defaulted. In this case, you will go to step 4.
If the defendant signs the Affidavit or defaults by not responding, then the divorce is considered “uncontested” and you can complete the remaining uncontested divorce papers, including the “Notice of Issue” form. If your spouse defaulted, wait 40 days from the date of service to file the rest of the papers, and if they signed the Affidavit of Defendant, you could file the rest of the paperwork immediately.
Your lawyer will help you file the paperwork with the appropriate Clerk’s Office.
If the judge approves your divorce, they will sign a Judgment of Divorce, which must be filed with the County Clerks’ Office. A copy of the Judgment must be served to your spouse by someone who is 18 or older, and as they would in step two, the server must complete another “Affidavit of Service” as proof.
This is a general overview of the uncontested divorce process in New York. As you can see, a divorce becomes uncontested once the defendant signs the Affidavit of Defendant or does not respond to the Summons with Notice or the Summons and Complaint altogether. That said, if your spouse refuses to sign the Summons, then you can still get divorced without their signature in New York.
Happily Ever After Starts Here
At the Law Office of Dennis R. Vetrano, Jr., LLC, our Westchester County divorce attorneys go the distance to ensure our clients’ goals are accomplished in a timely, smooth manner. With so much stress on their plates, our clients deserve the utmost dedication and attention to their divorce matters so they can open a new chapter in their lives with ease. That’s what we are here for.
To discuss your situation and understand your plan of action, schedule a consultation with our lawyer online or at (845) 605-4330!