When a spouse refuses to sign divorce papers, the spouse seeking a divorce will need to obtain what is called a contested divorce. To file a contested divorce, the party who wishes to obtain the divorce must file a petition in the family court in their jurisdiction. Only the spouse who is filing for the divorce must sign, however, the spouse requesting the divorce usually must serve the other spouse with process. Service of process means that the other spouse is given notice that they have been sued. In a divorce situation, serving the other spouse with process means that the other spouse is notified that their spouse has filed for divorce and given a chance to appear.
If you have filed for divorce under fault grounds for a reason, such as a hope that the court will award you a larger portion of the marital property based on your spouses actions during the divorce, you are free to pursue a contested divorce whether your spouse signs the papers or not. To file a contested divorce action, you must file a petition in the family court in your jurisdiction. There is no need for your spouse to sign the petition, however, you will probably be required to serve your spouse with the petition in person. If giving your spouse the petition may be difficult, you may hire a process server to deliver the divorce papers to your spouse personally.
Spouses often refuse to sign divorce papers because they are uncomfortable with the language used and accusations made as part of a fault divorce. One way to prevent this problem is to agree to file the divorce under no fault grounds, after which you may find it easier to persuade your spouse to sign the papers.
As of 2010, all 50 states offer the no-fault divorce option of irreconcilable differences. Filing a divorce under this option eliminates the traditional finger pointing that often leads to refusal to sign by one spouse. When filing this option, only list and answer the required questions and avoid specifying any actual reasons for the divorce. Additionally, give the opposing spouse notice that you will be filing the divorce papers as no-fault. Avoiding a surprise can often help couples avoid the dreaded refusal.
Modernly, courts have moved past the traditional requirements of finding cause for a divorce. In fact, every court offers no-fault divorce. However, even a no-fault divorce can end in one of two ways, it can be contested or uncontested. When a spouse refuses to sign divorce papers, the divorce is no longer placed on hold, but instead considered contested. Once the divorce becomes contested, a hearing must take place in order to establish the reasons for contesting the divorce and for the court to resolve those reasons. If both spouses show for the hearing, the court will determine the legal terms of the divorce through testimony and evidence. The court will also decide on all settlements and divisions of property. In the mean time, there are some things that you can do to try and resolve the issues and avoid allowing the court to make the decisions for you.
One step that couples can take to resolve problems before their hearing is to consult with a mediator. Many times, one spouse is refusing to sign the papers because the filed divorce seems unfair. Meeting with a mediator can force those issues to the table where resolution takes place. More often than not, couples leave a mediation with divorce papers signed, settlement details in place, and everything ready to file. Should this be the case, it is not too late to cancel the hearing. To find a divorce mediator is your area contact your local bar association and ask for a mediator recommendation.
If the spouse refuses to show for the scheduled divorce hearing and all attempts at negotiating have failed, the original filing spouse has the right to request a default divorce. In this instance, the court will uphold the divorce request and all of the original terms. This means that all divisions of property, child support amounts and custodial arrangements listed in the divorce papers will be the court’s final decision. The reason the courts make this decision is because the court considers the opposing spouse’s absence to be an agreement.
Occasionally, a filing spouse is unable to get the other spouse to sign simply because that spouse cannot be found. In these instances, all courts allow for a filing of divorce under the reason of abandonment. If this is the reason listed, the court requires a certain waiting period, usually 6 months, and attempts to contact the spouse. If all attempts fail, then the court grants the divorce without a hearing.