Can My Spouse Refuse to Get Divorced?
- Video: When your spouse won't participate
- Is it legally possible to refuse divorce?
- Why your spouse might refuse divorce
- What happens when a spouse refuses to sign divorce papers?
- Steps to take if your spouse refuses to divorce
- Legal separation
- Glossary of helpful terms
- How to get help
While it can be frustrating and aggravating when a spouse attempts to refuse your divorce, they cannot stop you from getting a divorce. No state will keep you in a marriage you don't want to be in, and while you may need to jump through a few extra hoops, you can still get the divorce you seek.
Is it legally possible to refuse divorce?
Although a person can refuse to participate in a divorce, they can’t prevent it.
No one can force you to stay married. Not a single state will require you to stay in a marriage you don’t want to be in. But it does get more complex if your spouse refuses to participate in the divorce process.
The first thing you’ll need to do is make sure you meet the jurisdictional requirements. Most states require you to live in the state for a while before filing for divorce. This time ranges from 30 days up to a full year.
If your spouse refuses to participate in the process by evading personal service of the summons, you can get judicial approval to serve your spouse by publication or possibly by mail, if you know their address.
After that, you’ll need to wait a certain amount of time before you can proceed so the court knows your spouse isn’t going to participate. Once the court is satisfied, you may be able to move forward with a default divorce.
Watch: Can My Ex Really Say No to Getting a Divorce?
Some spouses resist divorce
Your reaction to the news of a divorce, especially your own, is a deeply personal one. Some people just don’t want to get divorced. Spousal resistance to the divorce process is a difficult situation that can create a great deal of upset and confusion. Often, people don't understand why someone would resist a divorce or why they would want to stay in an unhappy marriage.
Reasons why your spouse might refuse divorce
Divorce is scary. It’s a drastic move with significant consequences, and some people simply don’t want to go through with it – even if they might end up feeling better on the other side.
A sense of failure
For some, consenting to a divorce can feel like an admission of failure. They might worry about how their family and friends will perceive them, or they may be uncomfortable with how they now perceive themselves.
The financial considerations of divorce can be quite daunting. Suddenly, you must split all of your assets, including your property and money. The seemingly mountainous task of property division is enough to make some people highly reluctant to entertain the idea of divorce.
Strong emotional connections
Many couples have invested years of their lives together, which can lead to trepidation about ending the relationship. The emotional bonds of marriage can run deep, and some may feel incapable of letting go. Guilt and sadness about how things could have been are common emotions.
Religious beliefs about divorce
Sometimes, one spouse resists divorce because of the perceived moral implications attached to such an action in their faith. Many religions view marriage as a sacred union between two people that should only be dissolved if necessary. This perception may lead one spouse to believe that initiating or even considering a divorce is against their religious teachings – something they should not do even if they feel unhappy in their marriage.
Some people dread being alone. Even if they're in a relationship that isn't working, they may fight to stay because they'd rather not be by themselves.
What happens when a spouse refuses to sign divorce papers?
If your spouse refuses to sign divorce papers, it may feel like all is lost and that a divorce is impossible. In many states, however, you can still file for a default divorce if your spouse refuses to sign the papers.
To do this, you will need to file a divorce petition, serve your spouse, and wait the required amount of time specified by your state. If your spouse does not respond, you must then make additional requests to the court.
Once enough time has passed, you can return to court and request a default judgment. You'll need to show proof that your spouse received the divorce papers but did not sign them. Hiring a professional process server is one of the best ways to do this.
Because the other party did not show up in court or accept the served documents, the judge may rule in favor of your divorce case based on your statements alone.
No-fault vs. at-fault divorce
The state you live in can affect how you must respond to a situation like this. In some states, all that's required for a divorce is "irreconcilable differences," which simply means the couple cannot get along anymore. For example, if two people in California decide to end their marriage, they may just need to provide proof of their irreconcilable differences, and the court will grant the divorce.
A fault divorce occurs when one spouse alleges the other did something to cause the divorce. One frequently cited reason is adultery. This divorce path requires proof, however, so be prepared to provide concrete evidence of your assertion.
If an at-fault claim for divorce is denied by a judge, that means there was not enough evidence to prove the refusing spouse’s fault. In this situation, the couple may need to refile a no-fault divorce, starting divorce proceedings over.
Examples of no-fault and at-fault divorce
Nora and Nate’s no-fault divorce
Meet Nora and Nate. They’ve been married for 20 years and grown apart, disagreeing about their future together but agreeing that divorce is the right option. This situation is ripe for a no-fault divorce, meaning neither spouse has to prove any wrongdoing by the other.
In this no-fault scenario, the asset split generally follows state laws, whether that’s equitable distribution or community property. Without the mudslinging over who did what, Nora and Nate are more likely to divide assets and debts squarely, focusing on fairness rather than fault.
Alicia and Arnold’s at-fault divorce
Now meet Alicia and Arnold. After more than a decade of marriage, Arnold admitted to having an affair for about half the time he and Alicia were married. Alicia is hurt and angry and is seeking an at-fault divorce. This means she’ll need to prove that Arnold’s infidelity caused the marriage to fail.
If Alicia proves Arnold’s infidelity and that it caused the end of the marriage, she might gain an upper hand in asset division. In some cases, wrongdoing can skew the scales, potentially giving the innocent party more assets in dissolution.
Uncontested divorce vs. contested divorce
In an uncontested divorce, both spouses are united in their settlement agreement, which covers issues such as the division of property, child custody, and alimony. However, when one spouse refuses to divorce, it shifts the situation to a contested divorce.
A contested divorce is one in which there is disagreement over any aspect of the process or outcome. Divorce terms such as the division of assets, payment of spousal support and child support, and child custody must now be decided by the court system.
The challenge when one spouse refuses a divorce is that it prolongs the process and complicates matters for both parties involved.
Examples of uncontested and contested divorce
Chris and Alex’s uncontested divorce
Chris and Alex have agreed to end their marriage. They agree that the marriage is over, and they agree on how to split their assets and debts. This is an uncontested divorce. There’s no back and forth, no big arguments about who gets what.
In an uncontested divorce, the couple gets to decide how assets and debts are divided. A judge will review their decisions just to make sure one party isn’t taking advantage of the other.
Linda and Jordan’s contested divorce
Now let’s look at Linda and Jordan. They agree on divorce but nothing else. Neither one is budging an inch on any issue. This is a contested divorce.
In this situation, the division of assets and debts often requires judicial intervention. A judge will divide their assets and debts according to state law, often not bothering with who wants what. This takes control away from the parties and gives the division decisions entirely to the judge.
Steps to take if your spouse refuses divorce
- Serve divorce papers. Immediately after you’ve filed for divorce, you must serve your spouse the divorce papers. If they refuse to accept service, the person serving can sign an affidavit stating they attempted service, but your spouse refused. If your spouse does accept service, that’s even better.
- Wait for your spouse’s response. Even if you know your spouse doesn’t want a divorce, you still have to give them the legally required time to respond to the divorce papers. This time is usually 20 to 30 days. If they don’t respond or they respond saying they refuse to participate, your next step is the same either way.
- File for a default divorce. A default divorce gives you the upper hand, letting the court know your spouse refuses to participate. The court will review your request and make sure your spouse has every opportunity to participate. If the judge is satisfied that your spouse wants nothing to do with the divorce, they’ll grant your default divorce.
Here’s a checklist to help you prepare for a unilateral divorce:
- Personal identification
- Financial documents like tax returns, pay stubs, and bank statements
- Property list
- Debt records
- Income for both spouses
- Marriage certificate
- Any existing prenuptial or postnuptial agreements
What about legal separation?
Seeking a legal separation may be an option for couples who want to remain married but live apart. This does not officially end the marriage and is only available in some states.
Similar to a divorce, legal separation results in the division of assets and debts, outlines child or spousal support and sets forth child custody and visitation schedules. However, the key difference lies in marital status. Unlike a divorce, a legal separation allows the couple to remain legally married even though they’re separated.
This can be beneficial to those who wish to retain certain benefits that come with being married such as health insurance, Social Security benefits, or for religious reasons. However, it also means neither spouse can remarry unless they proceed with a full divorce, and not every state allows you to convert a legal separation into a divorce.
Glossary of helpful terms
- Divorce petition: The formal request submitted to the court to initiate a divorce
- Summons: A legal notice served to the respondent, compelling their appearance in court or response to the divorce petition
- Process server: An individual certified to deliver legal documents
- Response period: A designated time frame within which the respondent must answer the divorce petition, usually around 20 days
- Default divorce: A court’s ruling on the divorce in favor of the petitioner due to the respondent’s failure to answer within the allotted time
- Marital assets: All property and financial resources acquired by either spouse during the marriage, with few exceptions
- Marital debts: All debts and financial obligations incurred by either spouse during the marriage, with few exceptions
- Spousal support: Financial help paid by one spouse to the other post-divorce
- Child custody: The legal determination of which parent will have primary responsibility for a child post-divorce
- Visitation: The arrangement set for the non-custodial parent to spend time with their child following divorce
How to get help
Even if your spouse doesn't want a divorce, you can still get one. You might have to jump through some extra hoops, but don't be discouraged. At Hello Divorce, we can provide legal advice, guidance, and support to help you overcome these challenges and get the divorce you want.
When facing a partner resistant to divorce, here are some legal support services to consider:
- American Bar Association: Find reputable divorce lawyers in your area
- Your local legal aid society: For those with budget constraints, these organizations offer low-cost or no-cost legal services
- A certified divorce financial analyst (CDFA): A CDFA can help you determine your financial options post-divorce. Hello Divorce offers CDFA help, among other divorce-related services.
It’s important to be aware of your mental state during and after divorce. This is an emotional process and you should consider your mental wellbeing. DivorceCare is a nationwide network of support services where you can meet and speak with other people in similar situations.
Also consider online support groups and in-person groups in your area. Do not underestimate the emotional toll divorce will place on you. Take action, and find a community to help you.
Bar Directories and Lawyer Finders. AmericanBar.org.