When a Spouse Does Not Sign Divorce Papers
UPDATED: March 12, 2018
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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 must formally notify the other spouse of his/her action by serving the divorce papers. In a divorce situation, serving the other spouse with the divorce papers means that the other spouse is notified that their spouse has filed for divorce and given a chance to appear. The person serving the papers can be a private process server or sheriff.
Fault Divorce Filings Lead to Refusals to Sign
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 spouse's 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 private 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.
The No Fault Divorce Option
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 using 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 interim, 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 as an alteratige to a drawn-out court hearing is to consult aa impartial third party, 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, only a short court hearing will be required to notify the judge that you plan to stipulate to the terms of the divorce.
To find a divorce mediator is your area contact your local bar association and ask for a mediator recommendation. Typically, your attorney will know local mediators, and will determine which mediator to use with your spouse's counsel.
Divorce by Default Proceeding
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 to the terms of the divorce. The court will make the default finding as long as the other spouse was truly served with the petition.
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 abandonment is the reason listed, the court requires a certain waiting period, usually 6 months, and attempts to contact the spouse or requires the filing party to make specific types of attempts to contact the spouse. If all attempts fail, then the court grants the divorce without a hearing.