When a marriage hits the buffers, ideally both husband and wife will agree to get divorced. However, many divorces are contested by one party which makes the whole process more difficult and leads to protracted negotiations.
What can make things even trickier is if one spouse refuses to engage at all and ignores the divorce papers. So what can be done in this scenario?
Depending on intentional or accidental dodging of divorce papers serviced to the other spouse, the person wanting to legally end the relationship may have options based on the state of residence. Some of these options involve using the mail service or having an official person track down the other spouse and serve the papers in front of witnesses.
The process of divorce can be complicated even in the best of circumstances, but becomes more difficult when a spouse doesn’t respond to a divorce petition. An attorney can help those who are served to respond in an appropriate way to protect their legal interests and can assist those who are filing for divorce with a non-responsive spouse
What are my options if my ex does not acknowledge the divorce papers?
One of the first major steps in getting a divorce is for one divorcing party to complete a matrimonial order (formerly called a divorce petition) which essentially comprises the divorce application to the court. Once the application has been submitted and approved, the court will send a copy to the other spouse along with an ‘acknowledgment of service’ form.
They must respond to this form within 8 days – either agreeing with the divorce or contesting it (or objecting to any costs). Once this has been done, the divorce can proceed to the next stage which is the application for decree nisi. But sometimes the other party fails to respond to the acknowledgment of service form. This may be due to an oversight or change of address – so as a first step it is worth contacting them informally to ask if they have received it Okay.
Serving Divorce Papers – Legal Options if Your Spouse Is Dodging Acceptance of Service
Many spouses in the United States believe that they can dodge the paperwork and not need to worry about going through a divorce. However, even if not served, the other spouse can move forward with the process of either divorce or to start the legal separation. The individual that seeks the divorce can use publication such as a newspaper to start the process when there is no other option to contact or serve the papers to begin. In this last resort, the spouse has the option to keep the publication going for two weeks in standard divorces.
If the first attempt to have the divorce petition papers fails, the spouse can send the documents in the post office mail to a P.O. Box or directly through the mail such as a certified letter. Reasonable measures are necessary first before seeking publication. However, this can lead to nearly anyone serving the paperwork to the other spouse to start the divorce process. This can even include anyone over eighteen that qualifies. If that fails, the individual can hire a private detective to help with this situation and ensure that the other spouse takes the papers at some point.
Using a Third Party
If the other spouse is dodging service papers, the one seeking the divorce may need to become creative. This may lead to hiring a third party to serve the papers as a person involved in his or her life at least momentarily such as a co-worker or someone the individual sees daily. With a third party, papers served will usually occur with several witnesses that require a receipt of the served documentation. If this does not work, the spouse has other options that may become necessary to include the last resort of using a publication to provide notice of the divorce.
Hiring a Private Detective
If the other spouse is unable to find the husband or wife, it is often possible to hire a private detective to accomplish this and ensure he or she receives the papers for the divorce. Then, there is also verifiable evidence of the served documentation. This can cut out the need to publicize the notice of divorce and also give the person the needed photographic or video evidence to the judge presiding over the case. This can cut out any other last resort methods and cut down the time involved in the last procedure in serving the notice.
Satisfying the Court
It is important to satisfy the judge to ensure that the process of divorce proceeds properly. This court authority will want to know what notice was given about the case to progress to the next step. He or she will usually provide a default judgment in these situations when the other party does not respond or attend the case. The petition of the divorce is often then granted as is without any changes because the other spouse does not counter it or arrive in the courtroom to refute the action with this party.
The Attorney in the Divorce Stages
The attorney is necessary from all levels of the divorce case. He or she can explain what stage to go to next, what to do and how to proceed with the petition and the judge. He or she will present the case and explain the details of the goals that the spouse wants to accomplish. The lawyer can also help with finding other professionals for hire with these processes.
Spouse Won’t Accept Divorce Papers?
When your partner does not sign divorce papers, what happens next will depend on the details of your situation – and, more specifically, whether your partner can be located and/or whether your partner contests the divorce.
Serving Divorce Papers
One of the initial steps of a divorce is serving a Complaint for Divorce, also called divorce papers. The complaint initiates the divorce by explaining who the parties are, asking for property, asking for support, and requesting other relief. The complaint is the paper declaring to the other person they are being sued. In all legal sense you are suing your spouse for a divorce.
Along with a complaint, most divorce papers consist of a summons, and joint preliminary injunction. The summons is the legal paper signed by the court noticing the defendant there are being sued and have 20 days to respond. The Joint Preliminary Injunction (JPI), explains you cannot incur community debts or dispose of community assets without the permission of the court.
Your spouse will only have 20 days from the date received to respond to the filed divorce papers. To ensure the papers were properly received, the court will not allow you to simply hand the documents to your spouse. Imagine how many people would say the papers were served when in fact, they weren’t. To keep everyone honest, the divorce papers need to be served according to Rules of Civil Procedure (RCP).
Hiring a Process Server
RCP requires the divorce papers to be served by an independent person over the age of 18. Law firms hire process servers to handle this task. Process servers are people who serve court papers as a course of business. You may also use a constable, but they are more expensive and typically take longer. Normally, the process server will serve the divorce papers to your spouse’s last known legal residence, or in person to your spouse whenever possible.
The process server does not need to have anything signed. They simply need to leave copies of the papers at the residence with someone of suitable age. The process server then completes a form declaring they served the documents. This is all the court needs to consider service completed and to start the 20 day deadline.
In some cases, the spouse attempts to avoid service or is impossible to locate. Maybe you have been separated for several years and didn’t keep tabs on each other. In this situation, you need to ask the process server for their “due diligence”. This means they will make every attempt possible to serve your spouse. They will contact their job, talk with co-workers, talk with neighbors, call family members, run online searches, check with the department of motor vehicles, and even send emails or text messages.
If the process server attempts all methods of service, and documents these steps then a divorce lawyer can ask the court for your spouse to be served by publication.
Serving Divorce Papers When a Spouse Cannot Be Located
In some cases, divorce papers won’t be signed because a partner moves and cannot be tracked down. When this occurs (and when reasonable efforts to track down the person are unsuccessful), a request can be made to a family court judge to publish the Summons in an effort to notify the Defendant (i.e., the spouse who cannot be located) about the impending divorce action.
This publication can occur in any “newspaper of general circulation,” and the notice must be published at least once a week for a minimum of four weeks.
You will need to run a notice of intent to divorce in a newspaper located in the city of the last known address of your spouse. There is a typical newspaper in almost every metro city. You will need to run this notice for about a month. The newspaper will send you a notarized statement after the publication. This notarized statement is filed with the court to satisfy the service of papers. With this, the timer for your spouse to respond to the divorce papers will start.
Next, one of two things can happen. The first is your spouse responds by filing an answer. If this happens, then the standard divorce process unfolds.
The second, is your spouse doesn’t respond within 20 days. If after the 20 days your spouse has not responded you may request the court to issue a “Default.” A Default means that the spouse does not object to the request for a divorce, nor do they object to the terms you have requested. A default divorce is not absolute victory, because your spouse has six months to ask the court to set-aside the default. But, a default is a strong position to be in. Setting aside a default is not always easy.
When a Spouse Can Be Located
If a spouse can be located and (s)he refuses to sign the divorce papers, then:
That spouse will have to be served with a Complaint for Divorce, which will provide 21 days for that spouse to respond to the complaint (these are consecutive calendar days, not business days).
If the spouse responds (i.e., “answers” the complaint or files a counterclaim), the divorce will be a contested matter.
The court will then usually schedule a case management conference to give divorcing parties the opportunity to try to resolve the issues of their divorce without a trial.
If the case management conference cannot resolve the issues of the divorce, a trial will be scheduled for the case.
Sometimes, one spouse will avoid service of the divorce papers under the misconception that if they never get served, the other spouse cannot move forward with the divorce or legal separation. This myth is common. However, the court is empowered to allow the petitioner to effect service by publication when the court is satisfied that the respondent cannot be served with reasonable diligence personally or by mail.
If you know your spouse’s post office address and that his or her mail was being picked up from that box, then failure to attempt service by mail will prevent the court from allowing service by publication. The court will require proof that the respondent cannot reasonably be served personally or by mail and may require that a search of databases (such as voter registration rolls) be conducted. A search of databases often requires the assistance of a private investigator.
Should the court be satisfied that the respondent cannot be served by mail or in person, the court will order the summons to be published in a named California newspaper or, if the party resides out-of-state, in a named newspaper elsewhere. The summons is published once a week for four consecutive weeks and service is considered complete on the last day of publication.
Once service has been completed, the respondent will be deemed served. If the respondent spouse fails to respond within the 30-day requisite period, then the petitioner spouse can proceed with the divorce without the respondent’s input.
What If A Spouse Doesn’t Respond To A Divorce Petition
When a person files for divorce, the other spouse is served with the court papers by a qualified process server. The spouse who receives the divorce papers has a limited period of time in which to respond to the petition for divorce. The responding spouse must provide an answer to the court, providing required information and appropriate legal paperwork.
If one spouse doesn’t respond to a divorce petition, this does not mean that the dissolution of marriage will not go forward. However, a failure by the served spouse to respond to the paperwork can slow down the divorce process, make it more complicated to end the marriage, and leave the non-responding spouse without a say in how marital assets and custody are divided. Failing to respond to a divorce petition is a big mistake and everyone who receives papers from a process server should be sure to respond appropriately and on-time.
What Happens When A Spouse Doesn’t Respond To A Divorce Petition
In some cases, one of the two spouses will try to be non-responsive in order to slow down the process of ending the marriage. For example, a husband or a wife who does not want the divorce to go through may be late in submitting paperwork or requested documents to the court. This delay tactics can lead to legal consequences. It may be possible for the spouse who is willfully late in responding to be held in contempt of court.
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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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