What If Your Spouse Won't Sign the Divorce Papers?

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.

By , Attorney

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?

If you want to end your marriage but your spouse doesn't, you should still be able to get a divorce. 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 (more on those procedures below).

But what if your spouse tries to frustrate your divorce efforts by refusing to agree to one of the "no-fault" reasons (or grounds) for divorce allowed where you live? In some states, the divorce process could be more complicated or simply time consuming when this happens. In Ohio, for instance, if 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 (2021)).

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 (sometimes called a complaint), 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.

When Can You Get a Default Divorce?

If you've served a divorce petition on your spouse (either through regular service or an alternative method), but your spouse hasn't filed a response on time, you may request a default divorce. State and local rules vary. Typically, however, the process will go like this:

  • You'll file a request to enter a default along with a proposed divorce judgment after your spouse has not responded to the divorce petition within 30 days after service.
  • 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 (2021).)

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.

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