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Ms Chase
Ms Chase, Consultant
Category: Legal
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Experience:  Business, Custody, Marriage/Divorce, Criminal Law, Contract Negotiation, Entertainment Law
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Judge wont grant divorce

Resolved Question:

Need some legal advice. My brother began dating a girl who is married to a guy who is in jail. She married this guy in jail because she had been going out with him for 7 years prior to his arrest and she thought she loved him. He is also a close friend of her family. Well, they had not been married for too long, their marriage was never consumated and when she met my brother she decided that marrying her former boyfriend was a mistake - she really didn't love him. So, she asked him for a divorce. She signed the divorce papers and he signed the papers as well. The divorce case went before a judge who denied them a divorce. The judge said that you cannot just divorce someone because you decide you aren't in love anymore. Can a judge do this? How can she get a divorce as she doesn't want to be married to this guy anymore and wants to become more serious with my brother? Please advise. Thanks.
Submitted: 8 years ago.
Category: Legal
Expert:  Ms Chase replied 8 years ago.
Hi Opus,

If their marriage was in fact never consummated, then she can most likely have the marriage annulled. Without consummation it's as if no marriage existed. You can check with your states bar association, but in many cases the annullment has to be applied for within two years. Annullment can be a complicated procedure, so I suggest she get an attorney to work everything out, if she cannot afford an attorney she can file for legal aide.

If you have any further questions, let me know.

If I have answered your question to your satisfaction, please click ACCEPT.

Thanks

Lisa
Customer: replied 8 years ago.
Reply to Lisa's Post: Hi Lisa-
Yes, the marriage was never consumated. Can she get an annullment even if he is still in jail? And can a judge really not grant a divorce? Why would a judge do this? I thought getting a divorce was up to the people married. (Ultiamtely, I will accept your answer - just need to figure out a few things first.)
Thanks.
Expert:  Ms Chase replied 8 years ago.
Opus,

You don't have to accept my answer if your not satisfied, and you can continue asking questions until either myself or someone else helps you to your satisfaction ok?

After some research I read that there are some instances where a judge may decide (why they would be allowed this personal opinion is beyond me) that granting a divorce is not the best recourse at that time and that the couple need time to seek counseling or be sure they want a divorce. But i think your judge would have stated this at the time and in fact should have given you another court date to get an update on how things are progressing? Did the judge give any reasons why? According to what I read, if there aren't any changes, the judge can then grant the divorce. Again, this is very uncommon, I believe this judge has no authority to make this decision.

The rules vary slightly from state to state, but from research it seems that as long as they both agree the annullment should go through, and like you said when they both agreed to the divorce that should have gone through. She could cite abandonment alone for reason for divorce.

You also have the option of filing an appeal on the ruling of the first judge, which I would strongly suggest if you don't go the annullment route.

Let me know if you have more questions, it's no problem. You can also update me on your problem at a later date by PMing me, I'd like to know how this works out.

Customer: replied 8 years ago.
Reply to Lisa's Post: Lisa-
Thanks for the info. Can she cite abandonment if she married him while he was already in jail? I know it's hard to answer this as there are so many parts to it. I try to include them all but I don't know if I mentioned that. So, he was in jail when they got married.
Expert:  Ms Chase replied 8 years ago.
Since they got married while he was in jail, maybe not. When they went before the judge they had what in NY is called, a mutual consent divorce. In NY there is a one year waiting period after filing the separation agreement (make sure this was filed)


I think her next course of action will depend on how fast she wants out, either she can let the year pass (providing what was actually filed was a Separation Agreement), and then she will be divorced, or she can look into whether or not she is eligable for an annullment.

I hope this helped.

Lisa
Customer: replied 8 years ago.
Reply to Lisa's Post: Just one more thing -
If she files a separation agreement, then after a year passes will be automatically be divorced in New York State? Or at that point does she have to go before the judge again? Thanks.
Expert:  Ms Chase replied 8 years ago.
when she goes to file the agreement, they should ask her certain questions, what are her reasons, alimony, living arrangements, ect. It can depend on her circumstances whether a judge will want to speak to them again in a year or if the paperwork will just go through, but they should be able to give her more info on exactly what's going to hapen in her case.

After doing more reading on annullments, its harder to get that than to do the seperation agreement, so thats probably her best bet.

Good luck to her, this s a hard thing for anyone to have to go theu, let me know if you have anymore questions ok?

Thanks

Lisa
Ms Chase, Consultant
Category: Legal
Satisfied Customers: 2897
Experience: Business, Custody, Marriage/Divorce, Criminal Law, Contract Negotiation, Entertainment Law
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