In most divorces, both spouses are aware that the marriage is ending and they decide what process they will use to reach an agreement, such as using mediation or the collaborative process. In other divorces, however, there has not been a meeting of the minds. While one spouse has been contemplating ending the marriage for months or even years, the other spouse seems to have no idea how bad things have gotten and your spouse doesn’t want to end the marriage.
I hear about these situations quite often. Let’s say it’s the wife who wants the divorce and she feels she has tried repeatedly to get her husband to work with her to resolve the problems in the marriage. For whatever reason, nothing has changed and the wife is now ready to do whatever she needs to do to get out of her unhappy marriage.
Perhaps she was referred to an attorney who represented a friend in her divorce. And the attorney tells her that she can start a court action, have the husband served with a Summons with Notice in an Action for Divorce and he will then have no choice but to deal with the situation.
Well, that sounds like a great idea to the wife. Her begging and pleading haven’t helped the situation, maybe having a process server walk up to her husband as he is coming or going from home or work and hand him a Summons will get his attention.
This wife just wants things to shift. She wants to move out of this place of inaction and toward a place where something, anything, is happening that will move her closer to divorce.
What she doesn’t realize is that as soon as her husband is served with the Summons, he’s going to feel attacked, scared, angry, distrustful and all other types of emotions that will not be productive if the wife is looking to be divorced as soon as possible.
When clients come to me in this situation I never suggest we file for divorce first. That should be the last resort. Instead, these are the 3 options I will suggest first:
1. Let me coach you to have a more productive conversation with your spouse to let him know you want to end the marriage and the process that you think would work best. If you don’t feel comfortable having this conversation on your own, I’ll suggest you schedule an appointment for you and your spouse to see your couple’s counselor and have the conversation there.
2. If your spouse still isn’t open to the idea of divorce, I will send him or her a letter saying that you have retained me and that you are committed to a non-adversarial divorce and to keeping it out of court, but that we need his or her cooperation. I will send your spouse the link to a website that he or she can use to find a non-adversarial attorney and ask that an attorney gets in touch with me within 2 weeks.
3. If I don’t hear from your spouse’s attorney in that period of time, it may be time to file the Summons with the court so that we can start the action for divorce. Under NY law, we have 120 days until we have to serve your spouse with the Summons so that gives me time to follow up on my letter 1 or 2 more times to see if we can move things forward.
Based on my experience with other divorcing clients in this situation, it’s very likely that your spouse will take my letters seriously and begin to understand that he or she needs to do something and that being passive and hoping you will change your mind is no longer an option.
When your spouse wakes up to this realization, lots of things can change. He or she will likely understand that your desire for an amicable divorce is a good thing. He or she will see that you hired an attorney who is committed to keeping you out of court and making sure that the two of you can reach an agreement that works for both of you and your children now and long into the future. This will help to improve trust between you. And he or she will see that their other attorneys that are just as committed to doing the same thing while representing him and that at the end of the marriage you can both have a sense of security.
Knowing you want to end your marriage can be a confusing and overwhelming time, especially if you haven’t yet told your spouse. To discuss how to have that conversation with your spouse and end your marriage in a non-adversarial way without litigation, contact Vacca Law & Mediation.