Husband doesn’t want divorce; wife coming in with him for mediation

Husband does not want a divorce.

A couple came in to see me today. The wife brought all the financial paperwork and was ready to get started on a mediated divorce. As I explained the process at length, and answered the wife’s questions, the husband sat in a chair as far away from the wife as possible, arms folded across his chest, and said not a word.

When I asked the husband if he had any questions he said bluntly, “No.”  After a moment, I said to him, “It appears to me me that you do not want to even be in my office. Is that true?”

He said, “Yes, I don’t want to be here.”

I said to him that I thought that perhaps he did not want a divorce at all and asked if that were true. He said that it was true and that he  did not want a divorce.

I told him that I had an obligation to tell him that mediation is a voluntary process and that, if he did not want a divorce, he didn’t have to agree to one. The wife did not look particularly happy that this.

It is my job to tell people the truth. The truth is that, in New York, we do not have “no fault” divorce. If his wife wants a divorce, and he does not agree, that she will have to hire an attorney, start a divorce action, serve him with papers, and convince a judge that she has grounds pursuant to the laws of the State of New York for the judge to grant her a divorce.

That is not as easy as it seems.

I asked the wife the following question: “If your husband will not agree to a divorce what will you do?”

She replied, “I will hire an attorney and sue him for divorce. I am not staying married to him one more minute.”

I asked the husband if he had understood that the wife was determined. He said that he did.

I then explained to him that if she sued him for divorce, there were two possible outcomes. 1. She would prevail, in which case the matter would go forward and the Court would determine custody, visitation, support, and distribution of assets and liabilities.

I pointed out that a Judge does what he or she thinks best, based on the laws of the State of New York, and that a judge has no obligation to do what one or the other of the parties wants. So in a litigated divorce the parties have far less control over the outcome than in a mediated divorce.

2. If his wife is unable to convince a judge that she has grounds for divorce then the action would be dismissed and they could live unhappily ever after. I told him that, no matter how awful things at  home were now, after the time, expense, and stress of an ultimately unsuccessful divorce trial, life at home would be a living hell. I wouldn’t recommend it.

My point to him really was not that he had to agree to a divorce, but that if divorce was virtually inevitable, he would have far more control over the outcome by participating in a mediated settlement.

One of the advantages of divorce mediation is that you retain far more control over the process than you do in a litigated divorce.