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. 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 some states, 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.
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).
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 Utah, 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.
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 Utah 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.
What to Do If You’re Spouse Won’t Sign the Divorce Papers
Even the most amicable of divorces can be emotionally trying and tiring to navigate. But if your spouse is uncooperative and refuses to sign the divorce papers, it can make things even more difficult and frustrating for you. If you’ve made the decision to get a divorce, you’re probably ready to move ahead with it so that you can focus on getting a fresh start. Having your spouse dig in their heels and refuse to sign the documents might leave you feeling angry, confused, and desperate to move things along. If you’re in this situation, here’s what you need to know about how to proceed.
Why Aren’t They Signing?
First and foremost, it’s important to try to understand the reasons for your spouse refusing to sign. There can be many different motivations for this action. Are they still hoping to work things out and preserve your marriage? In these cases, sitting down and clearly explaining to your spouse that you’re not happy in your marriage any longer may be able to persuade them to sign.
Are they trying to use this refusal as leverage to get you to give up certain assets or custody of your children? Some people think that refusing to sign will give them power over their spouse, making the other party desperate enough that they’ll make sacrifices simply to move the divorce along. If you think this is their motivation, don’t give into their manipulations. Talk to your attorney about how to proceed.
Another common reason we see for a spouse to refuse to sign divorce documents is simply to make things more difficult for their spouse. Divorces can often bring out the worst in people, and a spouse may refuse to sign the paperwork for a while solely to cause trouble. While it’s a somewhat petty action, both spouses usually end up signing the paperwork in the end, as it’s clear that neither of them are happy.
Why do your spouse’s motivations matter? Simply put, knowing the reason behind their refusal to sign helps you to better understand the best way to respond to this action. Whether you need to just sit down and have a talk, wait it out, or draw a hard line with negotiations will be based on what your spouse is hoping to achieve by refusing to sign the paperwork.
Can You Still Get a Divorce?
If your spouse has refused to sign the divorce papers, you might be panicking and wondering if you can still get a divorce or if you’re stuck in the marriage because of their action. The good news is that most states, including Utah, are “no-fault” states; this means you don’t have to prove that one spouse has done something wrong that led to the divorce. Rather, you can simply state that you feel the marriage is unsalvageable and continue to file for divorce.
You and your divorce attorney will simply have to file a Petition for Dissolution of Marriage with the courts. This can be done without a spouse’s signature. After filing, the paperwork will be served to your spouse by a process server. Your spouse will then have 20 days to file a response with the court. At this point, it will be in their best interest to finally respond to your filing; if they don’t respond within 20 days, the court will rule it to be an uncontested divorce.
Assuming your spouse does not file a response, a judge will file a default hearing on your uncontested divorce. You must attend and request the divorce in person; the court will then ask you about matters regarding property division and child custody. Assuming your spouse has still refused to show, the court will generally grant the reasonable requests of whichever spouse has appeared at the default hearing. However, you should still speak to an attorney about these matters.
So, if you can file a petition to end your marriage without your spouse’s signature, you might be wondering what all the fuss is about. Why bother trying to get your spouse to sign documents at all? The simple truth of it is that proceeding with a divorce is always easier when both parties are able to cooperate with one another. If your spouse is refusing to sign the paperwork they’ve been served, then odds are that they’re not going to be very cooperative in negotiating important facets of your divorce, such as division of assets, spousal support, and child custody issues. This can lead to a host of complications after you file your Petition for Dissolution of Marriage, so it’s incredibly important you have a skilled divorce attorney on your side.
Generally, if the other spouse refuses to sign the initial divorce papers, the person seeking the process can still file the divorce and proceed with the initial petition which does not require signatures from both parties. The case can start without the consent of each spouse no matter which person wants to halt it or cause problems.
Push Forward with the Divorce Process
Generally, the divorce papers do not need signatures from both parties to move forward. There is little need to ensure that the other spouse is in agreement to end the marriage legally. However, if both spouses are amenable to the process, it can permit both to progress through the divorce amicably. The initial petition is something that both spouses can review and make changes to or challenge to ensure that the judge will listen and understand what each person is wanting out of the divorce process such as marital property, child custody or visitation or what assets are to remain separate and not community property.
Legally Serving the Documents
When the other spouse refuses to sign the initial petition for the divorce, the person seeking the process will need to legally serve him or her the documents. Serving the papers can occur with anyone that is over the age of eighteen, but it often needs to happen through the Sheriff’s Office or with someone that is a licensed process server to ensure proper due process. If the other spouse is actively attempting to avoid the case by hiding or taking refuge in an unknown location, the other party can use the standard mail system. If nothing else works, the spouse seeking the divorce can use the public paper to publish a notice through permission of the court in the local area.
Using the Court
If the other spouse continues to remain combative, the process may proceed through the courts and with the judge. A failure to cooperate can still affect the case, but it may harm the other spouse instead. The court is still able to move the proceedings forward. If the other spouse decides not to attend the court for the case or even to respond to the divorce petition, the judge can enter a default judgment that will grant the divorce to the spouse seeking the process. In these situations, the judge may grant most of the requested relief, and the absent spouse has no right to contest this decision unless there is a valid reason for the absence and failure to respond.
Failure to Respond
The other spouse may fail to respond to the petition or the case, but he or she may file the respond and fail to participate. Any refusal to respond or cooperate with mandatory processes can lead to complications or even a negative outcome. The judge can issue penalties against the spouse and even hold him or her for contempt for his or her actions. This can continue until the person complies with any necessary actions or activity such as attending mediation or arbitration before the standard court case or litigation.
Final Divorce Documents
For any uncooperative behavior that continues, the court usually must progress through the case and determine if any issues remain outstanding and how to resolve them. The court will hold a trial in this event. Unlike the standard case where both parties work out the issues, the judge will decide all matters through state law and any guidelines that apply to the situation. This can support the spouse seeking the divorce, but there are some matters that may still provide something to the other spouse such as marital property and the division of assets.
Quicker Divorce Processes
When both parties are cooperative and willing to proceed through the divorce, the processes are generally faster and quicker to resolve. However, the divorce itself will usually still proceed forward even without the cooperation and assistance of the other spouse. When there is a hint or the possibility that the other party will remain in conflict and not want to sign papers or collaborate in any manner, it is important to contact an attorney to help with the divorce and any other processes.
Legal Support for Spouses that Refuse to Cooperate
In the divorce, the spouse may need a lawyer to file the petition and to proceed appropriately. This lawyer can also help if the other spouse is refusing to assist or cooperate to reach a beneficial outcome of the divorce.
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It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
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