Alongi Law Firm, PLLC

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What happens if I want a divorce but my spouse doesn't?

If you are ready to end your marriage but your spouse isn't, you can be understandably concerned about whether he or she will be able to prevent you from getting a divorce. In the end, a reluctant spouse can probably delay a divorce, but rarely succeeds in stopping it.

Below, we examine the measures a person might take to hinder a divorce.

Delaying the divorce

A person can delay a divorce in many ways - not all of them appropriate. He or she might drag out negotiations or refuse to bargain in good faith at a private mediation, parenting conference, or other ADR process. People will often hinder the exchange of mandatory disclosure, too, forcing the other side to file a motion asking the judge to intervene. That slows the process as well.

Last, a spouse might simply refuse to agree (in his or her opening papers) that the marriage is irretrievably broken. Such a finding eventually would be required under Arizona law. But it is doubtful such a strategy would ever pay off in the end; if one of the spouses is adamant that he or she is finished with the marriage, it is difficult for the other to prove differently - no matter how sympathetic the judge may feel.

Attempting to reconcile

There are more legitimate ways to slow a marital dissolution. Sometimes a man or woman who really believes the marriage is worth saving can invoke the Conciliation Court procedure. This usually results in a counseling/mediation setting where the parties talk over what has gone wrong. Attendance is obligatory, and a Conciliation Court petition automatically suspends all activity on the family court case for at least 60 days. In some instances, that two-month block can be extended to 180 days. (It is worth noting that the constitutionality of that four-month extension has never been tested in the Arizona appellate courts.)

Mandatory waiting period

In addition to all the maneuvering discussed above, every Arizona divorce requires a 60-day waiting period anyway - from the date a dissolution petition is filed. In other words, even if no one applies for Conciliation Court, and even if everyone is on board with rushing the divorce to a prompt conclusion, both spouses will have to wait at least 60 days after commencement of the case. During this time, spouses might reconcile on their own, and are frequently encouraged to do so. But that is not mandatory, and unless that reconciliation occurs, the dissolution will almost certainly happen in time.

Focusing on your own behavior and looking toward the future

It is important to work with your attorney diligently to avoid unnecessary delays or obstacles that the judge might perceive as bad faith attempts on your part to force someone to remain in a bad marriage. If that happened, the court could, for example, order you to pay back some or all of the other spouse's attorney fees as a punishment.

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