WHAT IF I DON’T WANT A DIVORCE? CAN MY ATTORNEY STOP IT?

Although many couples who become separated and are considering divorce have mutually agreed that divorce may be necessary, what happens if you don’t want a divorce?

There may be many reasons why a person does not want a divorce despite their spouse’s insistence – your faith may prohibit divorce, you may feel certain that your spouse will eventually come around, or you are concerned about the impact a divorce will have on your children.

What can you do?

Can your attorney delay or stop the divorce proceedings? Can your attorney force your spouse into divorce or marital counseling? Can the family court order counseling before granting the divorce?

I DON’T WANT A DIVORCE – CAN MY ATTORNEY HELP?

Although a divorce attorney has an ethical obligation to inquire as to whether reunification is possible – and we will help you find a qualified therapist if needed – in most cases we cannot stop the divorce proceedings once they have been filed by your spouse.

Can My Attorney Delay the Divorce Proceedings?

What if we drag our feet, engage in excessive discovery, file motions to slow down the process, and attempt to delay the proceedings until your spouse comes around?

In most cases, that is not possible either, although there are exceptions.

Rule 3.2 of the SC Rules of Professional Conduct prohibits the delay of court proceedings for an improper reason:

A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

Comment

[1] Dilatory practices bring the administration of justice into disrepute. Although there will be occasions when a lawyer may properly seek a postponement for personal reasons, it is not proper for a lawyer to routinely fail to expedite litigation solely for the convenience of the lawyer. Nor will a failure to expedite be reasonable if done for the purpose of frustrating an opposing party’s attempt to obtain rightful redress or repose. It is not a justification that similar conduct is often tolerated by the bench and bar. The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay. Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client.

On the other hand, delay may be justified when there is another legitimate reason for the delay – for example:

• If there are complex issues regarding the distribution of assets or custody of children;
• If there are other legitimate reasons to engage in extended discovery;
• If your spouse filed the action in the wrong venue (location), the case may be dismissed, and they may be required to re-file in the proper venue; or
• If your spouse, their attorney, and the court consent to the delay.

Any action your attorney takes to delay your proceedings must have “some substantial purpose other than delay,” and cannot be done solely “for the purpose of frustrating an opposing party’s attempt to obtain rightful redress or repose.”

Can My Divorce Attorney Force My Spouse into Counseling?

We cannot force your spouse to attend counseling, although we can encourage it and, in the right case, your spouse may agree to attend counseling with you…

Can the Family Court Judge Order Divorce or Marital Counseling?

In South Carolina, the Family Court can force your spouse into counseling, but, ordinarily, they will not.

The Family Court judge is required to attempt reconciliation before granting a divorce. The Court will ask whether the parties have attempted reconciliation and whether anything can be done to save the marriage. Despite this, if one party is adamant that they want the divorce, the Court will usually not force them into marital therapy unless the Court sees a reasonable chance that it would be successful.

I DON’T WANT A DIVORCE – CAN MY SPOUSE FORCE ME TO GET DIVORCED?

If your spouse has filed for divorce in SC and does not change their mind, there is not much that can be done to stop it. If your spouse has alleged fault-based grounds for divorce – adultery, desertion, physical cruelty, or habitual substance abuse, we could contest those grounds and ask the court to decide them at a trial.

Even if we are successful in challenging the fault-based grounds for divorce, however, your spouse is entitled to divorce after one year of continuous separation…

What can we do?

We can ensure that you and your children are protected during the divorce proceedings and that you receive all alimony, child support, and assets that you are entitled to in your divorce.

We can encourage marital therapy and discourage divorce whenever possible and appropriate.

We can help you through what we understand is a difficult and painful process by answering your questions, filing appropriate motions and discovery requests, and fighting for your rights, your financial security, and your children both in and out of court.

When needed, we can help to connect you with a qualified therapist who, depending on the circumstances, may help you reunite with your spouse or help you to accept the inevitability of divorce.

GOT AXELROD?

Your Myrtle Beach divorce attorney on the Axelrod team will help you through every stage of the divorce process – including reunification and avoiding a divorce when it is ethically and legally possible.

Call Axelrod and Associates now at 843-353-3449 or send us a message through our website to find out how we can help.