Going through a divorce can be a difficult process, even when both spouses are on board, but what happens when one spouse doesn’t want a divorce?
This is how some people process their separation, by refusing to participate in the divorce proceedings. Though it can make the divorce case more difficult, there are still ways to work with or around an inflexible spouse.
You Don’t Have to Remain Married
Every state’s laws are different, and the specifics of how you must deal with your intractable spouse may vary, but the bottom line is that you will be able to get a divorce if you are seeking one.
Though mutually negotiated agreements are the best and easiest way to settle a divorce, one spouse’s refusal to cooperate will not force you to remain married. Your spouse’s lack of cooperation can make it more difficult, time consuming and/or expensive to achieve a divorce, but it can not prevent it.
Service of Process
After filing a divorce petition, you must have the paperwork given to your spouse. This is called “service of process”. However, a recalcitrant spouse may try to avoid being served in an effort to halt or prolong the divorce proceeding.
If, for example, your spouse is hiding their location from you so that you can not serve them, the court will provide other methods for you to serve them the divorce papers.
There is a specific process you must go through to serve divorce papers. For example, the party who serves your spouse must be older than 18, a citizen or lawful resident, and must not be connected to the lawsuit. You can serve via a friend or relative or you can pay for service through a third party.
If you can demonstrate that you have seriously attempted to locate and serve your spouse, then the judge will generally approve some form of alternate service, such as service by publication in a local newspaper, or posting in a local courthouse.
When your spouse still hasn’t responded to your attempts to serve them, you can request a default divorce. This is the procedure when only one party is participating in the legal proceedings.
At this point, you must also submit paperwork concerning your wishes for child support, property division, and other things of that nature which are traditionally dealt with in a divorce.
The court can then, sometimes after a certain waiting period, grant a divorce to you even though your spouse has not participated at all in the legal proceedings.
Even if you go through a default divorce, the court still has an obligation to make sure that the divorce is fair to both parties. This means you cannot expect to come out of the divorce with a disproportionate share of assets even though your spouse has failed to participate in the divorce process.
Your Divorce with Silva & Associates
If you are trying to get a divorce and your spouse refuses to cooperate, it can help to have a divorce lawyer with experience handling a wide variety of cases. Even uncontested/default divorces have tricks and pitfalls that a wary counsel can help you avoid.
That’s why you should consider working with Silva & Associates. Our family law team has years of experience dealing with a wide variety of divorce cases, so we know what to expect. Reach out to us today to set up a consultation and discuss the next steps of your divorce.