Learn whether—and how—you can go ahead with a divorce if your spouse refuses to agree or return the paperwork—or simply can't be found.
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Even when it's clear that a marriage is headed for divorce, one spouse might not be ready to take that final, legal step. Some spouses deal with their resistance—or anger—by avoiding or refusing to sign divorce papers. While those maneuvers might complicate the process, they won't necessarily stop the divorce. Depending on the circumstances (and the rules in your state), you can usually get a final divorce even when your spouse won't cooperate.
Do Both Spouses Have to Agree to Divorce?
When you want to end your marriage but your spouse doesn't, you should still be able to get a divorce. But if you're worried about your spouse refusing to sign the divorce papers, it may help to understand some basics about the legal process. You can start the process on your own by filing a divorce petition (sometimes called a complaint). Your spouse doesn't need to sign this form. And unless you want to get an uncontested divorce, your spouse doesn't need to sign any of the divorce papers.
Just because you may get a divorce without your spouse's cooperation, that doesn't mean it will necessarily be a simple process. States have procedures for dealing with spouses who hide out to avoid being served with the divorce petition, or simply won't respond to the petition. But those procedures usually involve extra work and some risks (more on that below).
Also, the divorce process could be more complicated or simply time consuming in some states if your spouse refuses to agree to one of the "no-fault" reasons (or grounds) for divorce allowed where you live. In Ohio, for instance, when your spouse denies that the two of you are incompatible, you will either have to prove one of the "fault" divorce grounds or be separated for a full year before you can get divorced (Ohio Rev. Code § 3105.01 (2022)).
Can You Get a Divorce Without Your Spouse Knowing?
Judges try to prevent one-sided divorce proceedings. This means you can't go behind your spouse's back to get a secret divorce. You must give your spouse notice of any divorce paperwork that you've filed with the court (as discussed below), so that your spouse at least has a chance to respond.
Can You Get Divorced If You Can't Find Your Spouse?
When you file the initial divorce petition, you generally must arrange to have the petition and other paperwork delivered to your spouse through what's known as "service of process." But if you can't locate your spouse, you may ask the court for permission to use another method for giving notice that you've filed for divorce. You'll generally need to show that you made several serious attempts to find your spouse and serve the papers.
A judge will decide whether to grant your request and which form of alternative service to allow—usually service by publication (publishing a notice in a newspaper). Learn more about how to get a divorce without your spouse, including alternative service methods.
What Happens If Your Spouse Doesn't Respond to the Divorce Petition?
Once you serve the divorce petition on your spouse (either through regular service or an alternative method), your spouse has a certain amount of time to respond (usually about 20-30 days). If your spouse doesn't file an answer in time, you may then request a default divorce. State and local rules on default divorces vary, but the process typically goes like this:
- After the time for responding has passed without an answer, you'll file a request to enter a default along with a proposed divorce judgment.
- The court will set a hearing date and send notice to your spouse (unless there's no known address where your spouse can be reached).
- At the hearing, the judge will review the paperwork you've filed, might ask you some questions, and will ultimately issue a ruling on your divorce.
The default hearing might be more involved in some states. In Texas, for instance, you must provide evidence at the default hearing to show that what you've requested in your divorce petition and proposed judgment—such as the details of the property division—would be fair. (Tex. Fam. Code § 6.701 (2022).)
You should be aware of the pros and cons of default divorce. For example, most states give the defaulting spouse a certain amount of time to ask the judge to set aside the default judgment. So you could be in for a big headache if your spouse has a change of heart. If you're considering this option, it would be wise to speak with an experienced divorce attorney first.
Note that some states—like California—have a separate type of default divorce when your spouse has signed a written divorce settlement agreement but doesn't file a response to the divorce petition. Unlike a "true" default divorce, the court will treat this type of case like an uncontested divorce.
