I've filed for divorce, completed the paperwork, but my spouse won't sign. What are my options? Will the judge allow me to go on with the divorce?
Divorces, even those desired by both
spouses, often get contentious. And if one spouse won't agree to end the
marriage or is trying to avoid the divorce, the process may stretch out longer
Some resisting spouses can make the
divorce process very difficult by refusing to sign the necessary divorce papers
or by completely failing to respond to a request for a divorce. Others do so by
hiding or trying to avoid "service" (meaning in-person delivery) of
the divorce paperwork.
How a judge will treat these
situations depends on where you live: some states will allow the divorce to
proceed "uncontested," while others allow the petitioning spouse (the
spouse asking for the divorce) to obtain a "default divorce."
The easiest type of divorce is an
"uncontested" divorce, which means both spouses have filed the
necessary paperwork (a divorce petition and a response) and they agree to all
divorce-related issues, such as alimony (spousal support), child custody and
support, and the division of property and debts.
Typically, if you and your spouse
have reached an agreement, you can bring your agreement and any necessary
divorce paperwork to court, where a judge will review the agreement, issue
orders based on that agreement, and grant you a divorce. If the agreement
involves child support and custody terms, judges will check to make sure your
parenting agreement and the child support amount is in the best interests of
the child and meets state guidelines.
If you served the divorce petition
on your spouse, and he or she filed an uncontested response, but won't sign off
on the final divorce papers, courts in some states may allow the case to
proceed as though it's uncontested. You may wait to be assigned a court
appearance date. If your spouse fails to show up in court on that date, the
judge may treat the case as though it is uncontested and enter orders based on
your divorce petition and the response.
If you have served your spouse
properly, but he or she failed to file a written response on time, some states
let you file a request to enter a default. A request to enter a default is
allowed when one spouse has been served and fails to respond within 30 days. It
is also allowed when a spouse cannot be located for service.
If you have served your spouse with
the divorce petition and she or he has not responded to it within the statutory
30 days, you may file a request to enter a default along with a proposed
judgment. The court will set a hearing date and ask that you appear. At the
hearing the judge may issue a ruling based entirely on what is stated in your
divorce petition (or based on what you proved to the court) and then issue your
divorce orders and judgment. By failing to respond or appear, your spouse gives
up the right to have any say in the divorce proceeding or court judgment.
If you have filed for divorce and
are dealing with an uncooperative spouse, you should speak with an experienced
divorce attorney to discuss the possibility of pursuing a default case.