Default Divorce: When One Spouse Doesn't Respond
In some situations, spouses simply refuse to respond when served with divorce papers and a summons. This may feel like a dead end, but it’s not. You have options.
Understanding the difference between “true default” and “amicable default” divorce
When you file for divorce, you’re required to provide copies of the paperwork to your spouse, including a summons that tells them how much time they have to respond to your petition.
A default divorce occurs when one spouse files a petition for divorce, attempts to serve the petition and summons on their spouse, and the spouse refuses to accept service or fails to respond.
Confusingly, there are two types of default divorce: true default and amicable default.
True default divorce
A true default divorce occurs when you file a petition for dissolution and serve that petition with a summons on your spouse, but they never respond. You’ll need to prove to the court that your spouse received the divorce papers. The best way to prove this is by providing a notarized statement from a professional process server that they personally served your spouse. (This is also a good reason why you should use a professional process server.)
When your spouse fails to respond to your divorce petition by the date noted on the summons – usually about one month from the date they were served – you can ask the court to enter a true default divorce decree by filing a request for default.
Courts have an interest in making sure everyone involved in a legal dispute has their say. They’re often hesitant to quickly grant a request for default without additional information. Some states may require you to publish a notice in the newspaper, giving your spouse additional time to respond.
If you’ve satisfied the court’s requirements – and they believe your spouse received adequate time to respond but failed to do so – they may grant your request for default. Once they do, your divorce is finalized.
This can be a complicated process, so it’s a good idea to seek guidance if you need it.
Amicable default divorce
An amicable default divorce differs from a true default divorce. If you and your spouse agree that divorce is the right step and agree on all terms of your divorce – dividing assets, property, debts, and liabilities – you may be able to take the path of amicable default divorce.
When you file the petition for dissolution, you can also file a divorce settlement agreement, sometimes called a marital settlement agreement. If you and your spouse both sign this agreement, you’re letting the court know you both agree on the terms of your divorce. This can significantly speed up the process because the court doesn’t have to wait for your spouse to respond, you don’t have to pay to have your spouse served, and the court won’t scrutinize your decisions as much because they know you both agree.
If you and your spouse sign the agreement and provide it to the court with your petition, the court may grant an amicable default divorce. While you’re still subject to your state’s residency requirements, this can make your divorce go much faster.
When spouses sign a marital settlement agreement that’s filed with the petition for dissolution of marriage, the court understands that both people are prepared to move quickly on their divorce. This speeds up the process, making it less costly.
Watch: My Spouse Won't Participate in Our Divorce, Now What?
What happens if you don’t respond to a divorce petition?
When a divorce petition is filed, the spouse who filed the petition serves it, along with a summons, on their spouse. The summons provides details about how long the spouse has to respond to the petition. If the receiving spouse fails to file a response, the spouse who filed the petition can request a default divorce.
Some people simply ignore the divorce papers and don’t file a response. They don’t do this because they don’t want the divorce; they do it because they’ve decided it’s the best way to go about their divorce proceedings. They realize a default divorce costs less time and money, so they simply don’t respond and let the court enter a default divorce.
If your spouse has filed the petition for dissolution and you’re the one responding, make sure you understand your rights and responsibilities if you don’t respond to the summons. While it can be beneficial, you need to know you’re giving up your right to have a say in your divorce.
Many divorcing couples want to get their divorce over with as soon as possible. They may agree to a default without fully considering what they’re giving up. Make sure you understand how a default divorce affects your rights.
If you’ve served divorce paperwork on your spouse and they refuse to participate – or if you’ve been served and are considering a default because you think it could save you time, money, and stress – know that Hello Divorce is here to help you weigh your options and provide flat-rate legal advice in increments of 30 minutes or 60 minutes, should you need it.
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