Family Law

What If My Spouse Won't Give Me a Divorce

By Joseph Pandolfi, Retired Judge

One of the most painful elements of a contested divorce is the emotional toll it takes on families. This can be greatly intensified when one of the spouses doesn’t want the marriage to end. Whether it’s because one spouse doesn’t believe the marriage is over, or simply out of sheer spite, the refusal to accept a parting of the ways only makes a bad situation worse.

How Important Is a Spouse’s Cooperation in Obtaining a Divorce?

When divorcing spouses cooperate, it increases the chance of a more cost-effective divorce, with less emotional distress. Cooperation doesn’t require the spouses to necessarily like each other. Rather, it’s a realization on both their parts that setting aside their differences—as much as possible—is really in their best interests. The benefits of this mindset are magnified when children are involved.

Unfortunately, if your spouse is hostile and unwilling to help move the divorce forward, there’s little you can do to change that. But your spouse's refusal to play nice, while incredibly frustrating, won't be enough to prevent you from getting what you want: a divorce.

A Resistant Spouse Is Only Delaying the Inevitable

You don't need to worry about whether your spouse will eventually "give" you a divorce. There’s really no way that one spouse can give—or not give—the other spouse a divorce. By its very nature, divorce isn’t something that can be given; it’s not a thing—it’s a process.

An obstinate husband or wife can slow things down and make the process more difficult but can’t stop divorce from happening. The fact is that as long as you can prove your legal grounds (reasons) for the divorce, at some point, a judge will grant you a final judgment, which officially ends your marriage.

How Grounds for Divorce Work

Proving your grounds for divorce is where an antagonistic spouse can actually impact your ability to resolve your divorce efficiently. If you list “fault-based” reasons for your divorce, you will have to show that your spouse did something that caused your marriage to fail. Common fault grounds include adultery, abuse, addiction, abandonment, and imprisonment.

If your evidence of misconduct is weak, you could face an uphill battle in your case. Remember, you need to convince a judge that your allegations against your spouse are true. This could be a problem if you have no witnesses, or no documented evidence of your spouse’s wrongdoing, especially since your spouse will undoubtedly do everything possible to contest your claims.

The good news is that today, you shouldn’t have to go the fault-based route to get your divorce. In fact, some states have abolished fault-based divorce completely. All states now have what are known as “no-fault” grounds for divorce. These grounds include separation for a certain length of time (usually anywhere from a year to 18 months) and/or an “irretrievable breakdown” of the marriage (sometimes called “irreconcilable differences” or “incompatibility”), which simply means you and your spouse can’t get along anymore.

For a divorce based on separation, you need only prove that you’ve been living apart for the required period of time. In irretrievable breakdown situations, a reasonable explanation as to why you believe the marriage is broken should be sufficient for a judge to grant the divorce.

Although your spouse can make your life—and the lives of those around you—miserable for the time it takes to finally get divorced, the odds are heavily in your favor that you’ll eventually be able to formally end the marriage and move on with your life.

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