Dear Ask the Attorney:

My husband totally blindsided me by asking for a divorce. I still love him and don’t understand where this came from. I asked if we could go to a  marriage counselor and he said no- he just doesn’t love me anymore. Can he still divorce me if I don’t agree to it?

M.O.

Katherine Fredland, Esq. is an associate in the matrimonial department of Einhorn Harris Ascher Barbarito & Frost, P.C. whose practice is exclusively in family law and matrimonial matters.

Dear M.O.,

Let me first say that I am sorry you are in this position. Divorce is a life-changing event, and having it come out of the blue is terribly upsetting. That being said, the short answer to your question is “Yes, he can divorce you even if you do not agree to it.”

In New Jersey, there are rules for how to file a Complaint for divorce (the document that starts the divorce process off), what information need to be submitted to the Court, how much time the other side has to respond to the Complaint, etc. ... These rules are in place to make sure that cases do not stall in their tracks and drag on without resolution. 

However, even if one person does not want the divorce, the person seeking to leave the marriage can obtain a divorce, even if the other person refuses to respond to the Complaint for Divorce when it is served on them. If your spouse serves you with a complaint for divorce the clock is ticking as soon as you are served, and the process will move forward, with or without you; holding your breath until you turn blue does not stop the clock. 

If the person receiving the Complaint for divorce does not respond to the Complaint within the specified amount of time, the person who filed can then ask the Court to enter a Default in the case.  What this means is that they can ask the Court to enter a Judgment of Divorce, dissolving the marriage and dividing up the marital assets in the manner they are asking, because the other person chose not to participate in the process.

As bitter a pill as it may be for you to swallow right now, you should participate in the process in order to protect your rights and interests. This is especially true if there are children involved, as both you and your spouse will have to co-parent your children for the rest of your lives,  whether you are married or not. 

The actors Tom Cruise and Katie Holmes have been in the news recently, as Katie Holmes filed a complaint for divorce against Tom Cruise. Many news sources quoted him as being “blindsided” by her actions–much like you are right now. However, Tom Cruise, smartly, immediately got a lawyer and began participating in the process, to protect his interests and his rights. According to news reports this week, they have come to a settlement agreement, which will save them both a great deal of time, expense and conflict.

You should speak with a matrimonial attorney as soon as possible.  He or she will be able to tell you what the issues might be in your situation, what your rights are, and how best to protect those rights.    While it might be incredibly painful, you will make it through this process, and it is best to do so fully informed and fully protected.

Good luck.

Katherine Fredland, Esq.

“Ask the Attorney” is a new blog in which answers to your legal questions submitted to asktheattorney@einhornharris.com may be answered.  The answers to the questions are for informational purposes only and are not to be construed as legal advice or the creation of an attorney-client relationship.  The facts of each case is different, therefore you should seek competent legal representation.