If your spouse has agreed to get a divorce – or may even want a divorce – but does nothing to make it happen, you have a reluctant spouse. A reluctant spouse puts the burden of getting a divorce on his or her husband or wife. The result can be additional strain and aggravation between the parties, erosion of good will on your part, and additional legal fees. However, there are tactics you can use to try to bring a reluctant spouse to the negotiating table.
Reluctance is not the same as hostility or anger. It sometimes resembles passive/aggressive behavior (expressing negative feelings indirectly instead of openly addressing them). Sometimes the reluctant spouse doesn’t want a divorce, or to pay the legal fees necessary to get a divorce. Some reluctant spouses don’t want to change their status to “divorced” because he or she is in a relationship but doesn’t want to be “available” for another marriage!
What to do if your husband or wife does not want a divorce
First, hire an attorney who has some experience working with such cases. Second, don’t fight it. Don’t argue about who is right or try to persuade your spouse to see things your way; you probably won’t change your spouse’s behavior. Third, adopt a strategy to accomplish your goal of getting divorced, (almost) in spite of your reluctant husband or wife. The most important part of the strategy is to set deadlines and stick to them.
Strategy for divorcing a reluctant spouse
Initially, your attorney may send a letter, inviting your husband or wife to hire a lawyer to discuss separation or divorce. The letter should set a deadline: “Please inform me of your attorney’s name by [a certain date]. If we do not hear from you, my client will start an action for divorce in court.” Starting an action means formally filing a summons for divorce, which is a legal declaration that you are starting a divorce.
If you use this strategy, mean what you say. File the summons if your spouse does not respond by the deadline. Then tell your spouse you have filed a summons and if you don’t hear from him/her or an attorney within a few weeks, you will have the summons served. A reluctant spouse almost always retains counsel after being personally served with the summons.
Collect financial information for both of you
Your spouse may decide to cooperate by retaining an attorney. However, the process may slow down again once you both start to collect and exchange financial information. He or she may not diligently tackle this task, causing delays again. If you’ve had a preliminary conference with the court, there will be deadlines for providing financial information, and the court may impose fees on a party that does not cooperate. In that case, collect as much financial information as you can for both of you, from any account information you have access to. Your attorney can request another conference with the court to set deadlines for production of financial data and documents. If necessary, your attorney can issue subpoenas to banks, financial institutions, and corporations to demand account statements and other information.
Legal fees are an incentive for your husband or wife to cooperate
Mounting legal fees are often the reason a reluctant spouse finally agrees to work on the issues involved in divorce. Court appearances in a divorce action forward are expensive for both spouses. And the last thing a reluctant spouse wants is to pay a lot in legal fees. If you’re willing to make sensible compromises to achieve a settlement, it may help bring your spouse to the negotiating table. Build room for negotiation into any proposals your attorney makes so you can compromise without giving too much away.
Can my husband or wife prevent me from getting a divorce?
In the past, a reluctant spouse could hold up or stop a divorce action by denying grounds for divorce. The law used to require a reason for the divorce, such as abandonment, cruelty, or adultery, or a spouse in jail. Since 2010, however, New York State has had “no fault” divorce. Now all you need is one spouse’s sworn statement that the marriage has broken down irretrievably for six months. So your husband or wife can stall the divorce process, but can’t prevent you from getting a divorce.
Dividing marital assets may convince your husband or wife to get the divorce started
Sometimes the equitable distribution laws in New York give a reluctant spouse a reason to move forward with a divorce. As a rule, assets accumulated or acquired during the marriage, up to the date the divorce was started (called “marital assets”), will be divided between you. Stocks and property values may go up as the start of the divorce is delayed, which increases the value of marital assets each spouse will get. Sometimes an upcoming bonus, for example, will motivate a reluctant spouse to cooperate with the divorce process. He or she does not have to give you half of assets acquired after the divorce is formally started!
