Question: My wife had an affair and I would like to divorce her. Can I complete the divorce paperwork without her participation? Or does she need to sign the agreement or be involved in any way for the divorce to happen? Does it take both parties?
Answer: First I must preface my answer that I do not practice in Colorado. However, Cordell & Cordell has many attorneys licensed and located in Colorado who would be happy to help you. Because each state has different laws governing dissolution of marriage, it is important that you contact a domestic litigation attorney licensed in Colorado prior to taking any action.
A divorce action is typically initiated by one person. The person who files for a divorce is the petitioner and his or her spouse is the respondent. Some states allow the parties to file a joint petition for divorce, but it is not a requirement that both parties file the petition. You certainly would not need her permission to file.
Most states are no-fault divorce states. This means there does not need to be any allegation of abuse or adultery, rather, the petitioner simply needs to allege that the marriage is irretrievably broken or some other equivalent language. However, some states have a fault divorce option which may be advantageous for you. I do not know the laws of Colorado so you should definitely contact an attorney regarding this issue. Even if fault is not needed for the divorce, the adultery may be a factor the Court would use to consider property division and support.
Once you file for divorce, your wife will have to be served with a copy of the summons and petition and she will be given an opportunity to respond to your allegations. Each state has different time requirements and procedures which will ultimately lead to the granting of the divorce. Although a majority of divorces end with the parties agreeing to the final terms of the divorce, in almost all states you have a right to a trial on the issues and to have your matter heard by a Judge to determine the final terms of the divorce. So to answer your question, the process includes both parties but the parties do not have to agree for a divorce to be granted.
Erica Christian is an Associate Attorney in the Milwaukee, Wisconsin, office of Cordell & Cordell, P.C. She is licensed to practice law in the state of Wisconsin. She is a member of the Wisconsin Bar Association, the Family Law Section and the Children’s Law Section.