I Don’t Want a Divorce, But My Spouse Filed in New Jersey: What Are My Options?

Part of our September series on responding to a New Jersey divorce complaint. Start with the hub: Served with Divorce Papers in New Jersey.

This is the hardest consultation we have in this practice.

Someone brings us a complaint they did not expect and do not want. They are not thinking about equitable distribution. They want to know whether there is a way to stop this. Sometimes they want to know whether the marriage can still be saved. Often they are being asked to make permanent legal decisions during the worst month of their life.

We are not going to tell you what you want to hear. We are also not going to tell you that hoping for your marriage is naive, because it is not, and because protecting yourself legally has nothing to do with giving up on it. Those are two separate tracks. You can run both at the same time, and most of our clients in this position do.

Can You Stop a Divorce in New Jersey? No, and Here Is Why

New Jersey grants divorces on the ground of irreconcilable differences under N.J.S.A. 2A:34-2(i). The statute allows divorces upon a showing of “Irreconcilable differences which have caused the breakdown of the marriage for a period of six months and which make it appear that the marriage should be dissolved and that there is no reasonable prospect of reconciliation.” It does not require that both spouses agree. It does not require that you sign anything.

People ask whether they can testify that reconciliation is still possible and defeat the ground that way. In theory, the statute contains that element. In practice, if one spouse tells the court the marriage is over and wants a divorce, courts do not force people to stay married. We have never seen a New Jersey divorce denied because the defendant said they still wanted the marriage.

So the question is not how to stop it. The question is what you do now.

Refusing to Participate Does Not Slow a New Jersey Divorce Down

This is the most damaging misconception we encounter.

People think that if they do not answer, sign, or show up, the case stalls. The opposite happens. The case moves faster, because nothing is being contested. Your spouse requests default. The court hears their version of the finances and proposed custody arrangement. A judgment of divorce is entered without your involvement or presence.

Non-participation in a divorce is not resistance. It is forfeiture with extra steps.

And it forfeits things that have nothing to do with whether you wanted the divorce. Whether you keep the house. What your alimony obligation looks like for the next fifteen years. When you see your children. None of those outcomes improve because you declined to engage. They get decided without you.

A woman received divorce papers from her husband. She did not want to get divorced and told her husband that, but he misled her into believing that they can stay married and that the divorce case would simply go away without her having to do anything. A few weeks later, the husband requested default and did what was needed to get a default judgment of divorce, leaving the woman with no alimony or division of her husband’s assets after many years of marriage. After realizing her husband’s deceit, the woman came to us and promptly engaged to reopen the divorce and assert her rights to alimony and equitable distribution. There is no guarantee that a court will vacate a default judgment of divorce, and it cost the woman additional attorney fees to take that step, all of which could have been prevented had she responded to the divorce papers in a timely manner.

Actual results may vary. Prior case results do not guarantee similar outcomes.

Served with Divorce Papers in New Jersey: The First 35 Days

Answering a New Jersey Divorce Complaint Without Filing a Counterclaim

Here is something almost nobody explains to a defendant who does not want a divorce.

You can file an answer without filing a counterclaim. An answer responds to your spouse’s complaint and preserves your right to be heard on every issue. A counterclaim is your own affirmative request that the court dissolve your marriage. Although an answer and counterclaim are often contained in a single document, they are different from one another, and they say different things about what you are asking the court to do.

For most defendants, a counterclaim is recommended, for reasons explained in the hub post. Without a counterclaim, your spouse controls whether the case continues and can dismiss it when things stop going their way, taking any favorable interim order with it. That is a real risk, and you should understand it before you decide.

But for a client whose religious convictions do not permit them to seek a divorce, or who simply cannot bring themselves to ask a court to end their marriage, answering without counterclaiming is a legitimate option. You are fully in the case. You can contest everything. You can make requests for relief, like alimony, custody, and division of property. The only thing you are not requesting is the divorce itself.

The tradeoff is manageable, not free. It requires deliberate judgment about how hard to push and when, because pushing too effectively can prompt your spouse to dismiss and erase the progress you made. We have handled cases on exactly that footing.

A husband came to us after his wife filed for divorce. For personal reasons, he did not want to file a counterclaim. But – in addition to opposing his wife’s requests for alimony and asset division – he wanted to maximize his custody, visitation, and parenting time with the children. After explaining the risks of not filing a counterclaim for divorce, we managed the case carefully and strategically to achieve a fair settlement without overwhelming the wife to the point of abandoning her complaint and refiling it to start a whole new case.

Actual results may vary. Prior case results do not guarantee similar outcomes.

Reconciliation While a New Jersey Divorce Is Pending: What Actually Happens

Some divorcing parties reconcile after a complaint is filed. Not many, but it happens, and we have had clients go through it. If that is what you are hoping for, there are several things you should understand, and most of them are not what people assume.

Moving back in together does not affect the divorce

This surprises people. Resuming cohabitation with your spouse has no bearing on the six-month irreconcilable differences period and does not undercut the ground for divorce.

The reason is that living together and having irreconcilable differences are not inconsistent with one another. Spouses file for divorce in New Jersey on irreconcilable differences grounds while still sharing a house, and they get divorced while still living with one another as well. It happens regularly. We have handled those cases.

So, if part of your thinking is that moving back in will interrupt the clock or weaken your spouse’s grounds, it will not. There is no rule to that effect, because the premise behind it is wrong.

Courts will not pause a New Jersey divorce case for reconciliation

There is no pause button. Courts do not stay matrimonial cases so the parties can attempt to reconcile. Deadlines keep running whether or not the two of you are talking.

If you and your spouse want to explore reconciliation, you have two real options.

The first is to work on the marriage while the case proceeds. Nothing prevents this. But the case does not slow down for it, which means you are litigating and reconciling at the same time, and you need to treat the two separately. We have watched people miss filing deadlines because a good conversation over the weekend made the litigation feel less real. It was still real on Monday.

The second is to dismiss the case without prejudice and take the litigation off the table entirely. This is the cleaner path if both spouses genuinely want to try to reconcile, because it removes the adversarial pressure that makes reconciliation harder. Without prejudice means the case can be refiled if it does not work. Under New Jersey Court Rule 4:37-1(a), a divorce complaint can be dismissed without prejudice by the filing party before they receive an answer to the complaint, or by filing a stipulation of dismissal without prejudice that is signed by both parties.

Who can dismiss depends on whether you counterclaimed

This connects back to the counterclaim decision, and it is worth understanding before you make it.

If your spouse filed, and you answered without counterclaiming, the case is entirely theirs. They can seek to dismiss it by way of motion under Rule 4:37-1(b). You are along for the ride.

If you filed a counterclaim, your own claim for divorce is pending independently. A dismissal then generally requires both of you to agree, because dismissing your spouse’s complaint does not dispose of your counterclaim. That gives you more control over whether the case ends — which is useful if you want it to continue, and something to think through if you might later want it gone.

Also understand that when a case is dismissed, any pendente lite order is dismissed along with it. Support that was being paid under a court order stops being ordered. If you are receiving interim support and reconciliation is being discussed, that is a practical consequence to plan for rather than discover.

After months of representing a husband in a divorce, he and his wife wanted to dismiss the divorce case and explore reconciliation. But, the wife also wanted to preserve the interim support order she previously obtained, not necessarily because it was favorable to her, but because she did not want to have to make another formal and expensive request to the court for support already awarded to her. We drafted a stipulation of dismissal without prejudice to preserve that award – and the case – for a limited period of time. That encouraged the parties to seriously explore reconciliation while preserving the wife’s support award without it hanging over the husband’s head indefinitely.

Actual results may vary. Prior case results do not guarantee similar outcomes.

Be careful what you put in writing

Things you wrote to your spouse while being vulnerable and conciliatory can be read back to you later in court if reconciliation fails and the litigation resumes. Emails and texts exchanged while you are trying to work things out are not privileged and can end up in the case.

Counseling is a separate and more complicated question. New Jersey Evidence Rule 510 claims to quote N.J.S.A. 45:8B-29 but says, “A communication between a marriage and family therapist and the person or persons in therapy shall be confidential and its secrecy preserved.“ But, N.J.S.A. 45:8B-29 actually says, “A communication between a marriage and family therapist, or an associate marriage and family therapist, and the person or persons in therapy shall be confidential and its secrecy preserved.” The discrepancy exists because Evidence Rule 510 was written to mirror the statute as it read in 1995, and the Legislature amended the statute in 2017 to add associate marriage and family therapists without a corresponding amendment to the rule. When the Supreme Court of New Jersey notices the inconsistency, which may come after the Supreme Court Committee on the Rules of Evidence brings it to the Court’s attention, expect the evidence rule to be updated to mirror the statute. That said, because New Jersey Evidence Rule 500 says “Privileges as they now exist or may be modified by law shall be unaffected by the adoption of these rules,” courts should treat the statute as controlling.

Both the statute and evidence rule also say, “This privilege shall not be subject to waiver, except where the marriage and family therapist is a party defendant to a civil, criminal or disciplinary action arising from the therapy, in which case, the waiver shall be limited to that action.” Notice that the waiver exception does not explicitly apply to an “associate marriage and family therapist.” Moreover, there are other ways to adduce testimony that is otherwise inadmissible, such as to rebut another’s testimony or prevent fraud upon a court.

To simplify this complex issue, before you assume anything said in joint counseling is protected in a pending divorce, you should ask your attorney, and they should confidently respond or know where to look and get back to you with an informed answer.

While representing a wife in a divorce that she and her husband dismissed to try to reconcile, she learned in marriage counseling that her spouse had been philandering. Reconciliation failed, and the wife wanted to resume the divorce with an adultery claim under N.J.S.A. 2A:34-2(a). This would have required the wife to provide notice of the claim to anyone we could identify who participated with her husband in the adultery as required by N.J.S.A. 2A:34-15 and New Jersey Court Rule 5:4-2(b)(1), and each co-respondent to the charge of adultery would have the right to intervene and participate in the divorce action per the same statute as well as Rules 5:4-2(b)(2) and 4:33. Because the only evidence of the husband’s infidelity the wife had at the time came from what he revealed in marriage counseling, we could not plead adultery without risking the husband seeking to strike the adultery claim under Rule 4:6-4(b), obtaining attorney fees under the same rule as well as Rules 5:3-5(s) and 4:42-9(a)(1) and N.J.S.A. 2A:34-23, and requesting frivolous litigation sanctions under N.J.S.A. 2A:15-59.1 and Rule 1:4-8. So, we elected to simply reinstate the divorce case without making a claim for adultery. This also reinstated the wife’s interim support order and allowed us to seek and obtain discovery about the husband’s infidelity from documents, records, and sources outside of what he shared in marriage counseling. The husband promptly agreed to settle the case on terms favorable to the wife.

Actual results may vary. Prior case results do not guarantee similar outcomes.

New Jersey Frivolous Litigation Sanctions

The Mistake We See Most From Spouses Who Want to Save the Marriage

We understand the instinct. If you are the one who wanted to stay married, fighting over money feels like giving up on the relationship or proving your spouse right about who you are.

You can want to stay married while protecting your rights and future. Your lawyer contesting a valuation has nothing to do with whether you love your spouse. The two are unrelated, and the person on the other side has already retained counsel who is not making that mistake.

You can be decent to your spouse and still be represented properly. Most of our clients are. Decency is about how you treat someone. Representation is about what happens to your finances and children. It is a bad idea to trade the second for the appearance of the first.

What You Should Do Right Now If You Do Not Want the Divorce

• Answer the complaint within 35 days, or have your attorney obtain an extension. Whatever you decide about your marriage, do not let that deadline pass.
• Decide with counsel whether to counterclaim. If your reasons for not counterclaiming are religious or personal, say so. It is a legitimate position, and it can be worked with.
• Prepare your Case Information Statement carefully. It usually matters more than the answer, and it will follow you through the entire case.
• Do not sign anything your spouse’s attorney sends you. That lawyer represents your spouse and owes you nothing.
• If you are pursuing reconciliation, keep it separate from the litigation, and assume anything you write may be read by a judge.
• If you both want to genuinely try, ask your attorney about dismissing without prejudice rather than trying to reconcile under litigation pressure.
• Talk to a lawyer before you conclude that participating means you have given up on the marriage. It does not.

My Spouse Already Has a Divorce Lawyer

How Long Does a Divorce Take in New Jersey?

Frequently Asked Questions: When You Do Not Want the Divorce in New Jersey

Can I stop my spouse from divorcing me in New Jersey?

No. New Jersey grants divorces on irreconcilable differences under N.J.S.A. 2A:34-2(i), and your consent is not required. Courts do not compel people to stay married. What you can control is whether you participate in decisions about property, support, and custody. Refusing to participate does not prevent the divorce; it only removes your voice from those decisions.

What happens if I refuse to sign the divorce papers in New Jersey?

Nothing you would want. There is no document you sign that grants the divorce. If you do not file a response, your spouse can request default, and the case can proceed to default judgment without you on your spouse’s terms. Refusing to engage speeds the case up rather than slowing it down.

Does moving back in with my spouse stop the divorce in New Jersey?

No. Resuming cohabitation has no bearing on the six-month irreconcilable differences period and does not undercut the ground for divorce. Living together and having irreconcilable differences are not inconsistent. Spouses in New Jersey file for and obtain divorces on that ground while still sharing a home.

Will a New Jersey court pause my divorce case so we can try to reconcile?

No. Courts do not stay matrimonial cases for reconciliation attempts, and deadlines continue running regardless. If both spouses want to try, the options are to work on the marriage while the case proceeds, or to dismiss the case without prejudice so it can be refiled later if reconciliation is unsuccessful.

Do I have to file a counterclaim if I do not want a divorce?

No. You can file an answer without a counterclaim and still participate fully in every issue. But without a counterclaim, your spouse controls whether the case continues and can dismiss it, along with any pendente lite order you obtained. For clients with religious or personal objections to seeking a divorce, this is a legitimate option, but it requires a deliberate strategy.

Should I be accommodating in the divorce to encourage reconciliation?

No. Conceding on financial or custody issues does not change how your spouse feels about the marriage, and it produces a bad divorce judgment that will haunt you for years. You can treat your spouse decently and still protect yourself and your rights. The other side is not making concessions for emotional reasons.

Do I need a lawyer if I do not want the divorce and am not fighting it?

Yes, particularly then. Not contesting the divorce itself is different from not contesting how your property is divided, what support is ordered, and where your children live. Those get decided regardless of how you feel about the marriage. A judgment entered without your participation is final and difficult to undo later.

Contact The Law Office of Rajeh A. Saadeh, L.L.C.

You did not choose this. But the decisions in front of you now are real and have deadlines, and the person who filed has already spoken to a lawyer.

Protecting yourself legally is not an admission that the marriage is over. It is what you do while you figure that out. The Law Office of Rajeh A. Saadeh, L.L.C., represents clients throughout New Jersey in divorce litigation, including clients who did not want the case filed and are not sure of what they want. We serve clients statewide, including Somerset County, Middlesex County, Morris County, Hunterdon County, and Monmouth County.