When it comes to divorce, emotions can run high and things can get complicated if the parties don’t agree. Perhaps you believe you’re owed more assets than your partner is willing to give up. Perhaps you feel deserving of sole custody. Or perhaps you don’t want to divorce at all—but your partner does. If you are in one of over 750,000 couples who find themselves in divorce proceedings in the United States, you may be wondering: Can I fight my divorce?
The answer is complicated. To understand your rights as a contesting party in a divorce, you should understand the way divorce proceedings have changed in recent years. As always, a qualified family law attorney will be your greatest resource in navigating any legal situation.
Fault and no-fault divorce
You may believe that if your spouse cannot prove adultery or abuse, they do not have legal grounds to leave you. But this is no longer the case.
Until recently, divorce proceedings required one spouse to prove the other was legally at fault on grounds such as adultery, desertion, or confinement in prison to justify the grounds for divorce. If a spouse could not provide the evidence for the grounds they claimed, the divorce would not be granted. In 1970, California passed the country’s first no-fault divorce legislation. A no-fault divorce allows one spouse to end a marriage and is not required to accuse the other of wrongdoing. In 2010, New York was the last state to pass no-fault divorce legislation making “blameless” divorce available in all 50 states.
While no-fault divorce is now the law of the land, jurisdiction nonetheless plays a role. Each state has very different requirements and avenues to go about divorce, despite all having roughly the same definition of what divorce is, and what constitutes grounds for divorce. There are currently 17 states that do not offer the option of fault divorce-based claims; The other 33 states give couples the option between fault and no-fault.
What evidence you need depends on jurisdiction
Grounds in a no-fault divorce vary widely depending on your jurisdiction. These grounds could include incompatibility, irreconcilable differences, or irremediable breakdown of marriage. While these grounds are more subjective than traditional fault claims such as adultery, they are easier to prove. In Illinois, state law dictates that so long as the parties involved have been living separately for six month or more, the grounds of irreconcilable difference have been met. In Michigan, according to family law attorney Elizabeth Bransdorfer of Mika Meyers, “A spouse only needs to testify in open court under oath that the objects of matrimony have been destroyed.” This is the only grounds for a divorce necessary in Michigan.
Even in states like Michigan, where no-fault is the only option available, fault arguments are still relevant. One party may argue fault in order to secure a more beneficial division of property or leverage a higher amount of spousal support. However, there are limits to what proving fault can earn a couple in divorce proceedings. Fault usually is not a determining factor in custody battles regarding children, unless the fault claim shows the parent to be neglectful or possibly dangerous. For example, if the fault claim is for abuse, the judge may take this into consideration when determining legal and physical custody. This could result in less time with the children or supervised custody.
There are some fault claims that may be less impactful on a court. In some jurisdictions, infidelity is an indicator of a broken marriage, not evidence of fault, and it will not result in a large difference in award.
Can divorce proceedings be stopped?
Given that no-fault divorce is now an option everywhere and grounds require little proof, is there a way to fight a divorce? “In the long term, no, other than convincing the spouse to not proceed,” says Bransdorfer. When it comes to stopping divorce, the law is not on your side. Divorce proceedings can be delayed, though not stopped entirely, for the following reasons:
- Contesting terms of the agreement. Perhaps you want more spousal support or a different division of property.
- Jurisdictional issues. The filing spouse could have filed in the wrong place.
- Timing problems. The filing spouse may have moved to a new jurisdiction but has not lived there for the requisite amount of time before filing.
Eventually, however, these items will be sorted. Even if the case is dismissed due to a jurisdictional or timing issue, a spouse can simply re-file.
Ultimately, stopping a divorce is contingent on the spouse who filed changing his or her mind.
“Your spouse could also decide not to show up at your first hearing, in which case the judge would probably dismiss the divorce petition,” writes the Essig Law Office, a family law firm in Illinois. “By that point, you will have already filed your answer, and you probably will have filed your own petition or motion in hopes of a favorable ruling on property division, child custody and support. The judge is likely to rule in your favor on these requests if your spouse does not show up. But, you could still agree to abandon the divorce, as well, if you still feel so inclined.”
Assuming your spouse does not have a change of heart, the divorce will proceed as usual—with or without your objection.
Is there hope?
While you cannot legally stop a divorce, Bransdorfer says, the “best way to save a marriage is to separate from the spouse who does want the divorce. Live like it would be after the divorce and see how it works.” Some states require separation prior to divorce but others, like Michigan, do not. A separation can help you and your spouse to better understand your partner’s role (or lack thereof) in maintaining the household, sharing finances, or child rearing, without the legal finality of divorce. In fact, according to marriage counselors and other experts, a trial separation among the most frequent advice given to couples ready to untie the knot.
If after a trial separation a spouse still wishes to proceed you will have no other option but to do so. It may be helpful to consider why you want to stay in a marriage your partner is determined to leave. If the thought of litigation is particularly stressful, mediation may be a path worth exploring.
Getting a divorce attorney (or securing a credited family law mediator) will help you navigate through the legal minefield. Should the strain of divorce weigh too heavily on you or your spouse, bringing up feelings of fatigue, hostility, or anger, a mental health professional could help you to navigate the emotional stressors as well.