In the past, both spouses had to agree to a divorce in some circumstances. This could delay a divorce or make it complicated. Some people still believe that this is the case. However, you can get a divorce without the consent of your spouse in every state. Contrary to the myth, one spouse's lack of consent does not normally delay or complicate a divorce.
Speak with a family law attorney in your state. Even though it is a myth that one spouse can unnecessarily delay or complicate a divorce, obtaining a divorce, with or without your spouse's consent, can be difficult process when children or significant property are involved. Procedures are different in every state and often subject to local court rules. You do not have to hire an attorney, but you should at least consult with one if you have questions about your rights and options.
File for a no fault divorce. In this type of divorce, you are acknowledging that neither party is responsible for the dissolution of the marriage. No fault divorce is available in all 50 states. In some states, you can still file for a fault divorce and there may be legal advantages to doing so. However, filing for a divorce based on fault allows the non-consenting spouse to contest the grounds for divorce. If you have questions about which is best for you, consult with a licensed attorney in your state. Not all states grant divorces on fault grounds.
Serve your spouse with the divorce papers according to the rules for service of process in your state. Usually, you can serve your spouse by certified mail, sheriff's service or a registered process server. Contrary to movies and television, your spouse cannot unnecessarily delay the divorce by avoiding service. The sheriff can serve your spouse at work, home or anywhere else your spouse can be found. Service can be left with any other responsible adult, excluding yourself, at your spouse's residence. Also contrary to movies and television, in most states your spouse cannot avoid service by refusing the documents when presented with them. If your spouse refuses the documents when presented with them by a sheriff, sheriff's deputy or process server, your spouse is considered served. If your spouse cannot be found, the court may find that service by publication in a newspaper of general readership is sufficient.
Wait for your spouse to either answer the petition for divorce or for the statutory time-period for an answer to expire. If your spouse does answer the petition and states that he does not want a divorce, it doesn't matter. You have a legal right to a divorce. In a no fault divorce, only one party needs to believe that the parties have irreconcilable differences for a court to grant a divorce. If your spouse does not file an answer, the court can grant you a default judgment including granting your property and custody requests as long as they are reasonable.
Follow the proceedings in your jurisdiction regarding division of assets, spousal suppurt and custody determination. Some courts require the parties to attend settlement conferences or mediation. The procedure is different in every state and in different court rooms within a state. If you and your spouse cannot agree, the court will schedule a trial. If your spouse refuses to cooperate, judges do not generally allow one party to delay a divorce. The judge can often grant a divorce before other matters are decided and finalize the other matters at a later date. The judge can hold a non-cooperative party in contempt of court for refusing to attend court-ordered events. The judge can also schedule a trial at which a non-cooperative party's position is likely to be looked upon less favorably. If your case goes to a trial, hire an attorney to represent you. You can represent yourself in court, however, you will be held to the same standards of evidence and procedure as an attorney.
Ask the court to grant your divorce. This usually requires a hearing after a statutory waiting period. The procedure for getting a hearing is different in every state. However, most courts will schedule a hearing at the appropriate time without a formal request from the parties. If the court schedules a hearing, the court will notify you in writing of the date and time.
References & Resources
- Find Law: An Overview of No Fault and Fault Divorce Law
- Milwaukee County Court Services: Family / Paternity
- Michigan Courts: Divorce
- Alaska Court System: Filing for Dissolution or Divorce - Ending Your Marriage
- Minnesota Judicial Branch: Divorce Basics
- Maryland Judiciary: Frequently Asked Questions
- Utah State Courts: Getting a Divorce in Utah