Sometimes, you are unable to obtain your spouse's signature on the divorce documents. In such cases, you may be able to get a divorce without your spouse's signature. The following article describes how it can be done, and under what circumstances it cannot be done.
In all divorce cases, you must give legal notice to your spouse that you want a divorce. The legal notice is usually what is called a Summons with Notice (SWN). This SWN must first be filed with the Court before you can give it to your spouse.
Usually, the SWN must be hand-delivered to your spouse by someone (the process server) other than you. And there are additional legal requirements such as: (1) the process server must be over the age of 18 and be a resident of the state of New York; and (2) the delivery must not occur on a Sunday or a religious observance day of your spouse.
If the process server has made multiple attempts to deliver the SWN on your spouse but is still unsuccessful, then you may apply to the court for permission to serve the SWN by another means.
In cases where your spouse is living outside of the US, it is possible to have the SWN served on your spouse by a method other than personal delivery, but a court order must first be obtained before such alternate service is permitted.
If the whereabouts of your spouse is unknown, then you may apply for a court order allowing you to give divorce notice to your spouse by publication in a newspaper.
After notice is given to your spouse in accordance with all the applicable legal requirements, then your spouse has a certain period of time to respond to the SWN. This time period can be 20 or 30 days depending on how the notice was given.
If your spouse does not respond to the SWN within the time limit, then you may ask the court to give you a divorce based on the fact that your spouse has defaulted. If all divorce documents are properly drafted, and all the facts and legal arguments for your case are properly presented, the court will grant you a divorce. You are usually not required to appear in court in person.
On the other hand, if your spouse responds to the SWN in a proper legal manner, then your divorce case becomes a contested divorce. Usually, in such cases, both sides are represented by an attorney. You and your spouse may be unable to agree on all issues of the divorce such as property division, alimony, custody of children, visitation of the children and child support. These issues will then be litigated in the court. The whole divorce litigation process may take 9 to 18 months or more.
Disclaimer: this article should not be construed as legal advice. Each legal case should be analyzed based on its own facts and circumstances.<- Previous Next ->