How to Divorce an Unwilling Spouse

by Anna Green Google
    Even if your spouse is unwilling to divorce, the court may still be able to dissolve your marriage.

    Even if your spouse is unwilling to divorce, the court may still be able to dissolve your marriage.

    George Doyle/Stockbyte/Getty Images

    If you want to get a divorce but your spouse does not, you may be able to dissolve the marriage anyway. A contested divorce can be complicated and time-consuming. Unlike a divorce in which both parties agree to end the marriage, a contested divorce generally requires you to attend a trial in front of a judge and argue why your marriage should be dissolved. As you proceed with your divorce, remember that the divorce laws and procedures for divorcing an unwilling spouse vary from state to state.

    Step 1

    Draft a petition for divorce. State law determines the exact requirements for a divorce petition, but generally, the document should list information about both spouses, including each party's name, birth date, current address and date of marriage. The divorce petition should also include your minor children's names and dates of birth. Finally, you must state the reason you want to divorce your spouse, such as irreconcilable differences.

    Step 2

    Prepare additional supporting paperwork. If you plan to apply for child support, alimony or child custody, you will need to fill out a financial affidavit or child custody affidavit. In most jurisdictions, you can request copies of these affidavits from the court clerk's office.

    Step 3

    Submit your divorce petition to the clerk of the court. Once you have completed your petition for divorce and any affidavits, file them with the clerk of the court and pay your filing fee. You must file your divorce petition in the county or city where you currently reside.

    Step 4

    Have your unwilling spouse served with copies of all the divorce papers after filing them with the court clerk. In most locations, you can serve your spouse by private process server or law enforcement officer. Alternatively, some jurisdictions allow you to serve your spouse by certified or registered mail.

    Step 5

    Wait for your spouse's response. Once your spouse receives the divorce papers, he will have to prepare a written response to the documents stating why he objects to the divorce. The timeline under which your spouse must respond varies between states. If your spouse fails to respond, you may be able request a default judgment and proceed with the divorce.

    Step 6

    Present your case to the judge. After you and your spouse have submitted your divorce papers to the court, the clerk will assign you a hearing date. At the hearing, both you and your spouse will have the opportunity to make a case as to why you should or should not divorce. You may present evidence or call witnesses to support your case. Soon after the hearing, the judge will make a ruling on whether the court will grant your divorce.

    Tips & Warnings

    • When dealing with an unwilling spouse, divorce mediation may be an efficient and cost-effective way to reach a mutually agreeable arrangement.
    • If the judge does not grant your divorce, in most cases, you have the opportunity to appeal the decision.
    • Divorce laws vary between states. If you have any questions about your rights or obligations in a contested divorce, consult an attorney or the clerk of the court for specific information on divorce requirements for your jurisdiction.

    About the Author

    Anna Green spent seven years as a self-employed legal writer before becoming a therapist for children and adolescents. After earning degrees in political science and English, she attended law school and then pursued a degree in mental health counseling. In addition to her writing work, she is the founder of a nonprofit mental health group.

    Photo Credits

    • George Doyle/Stockbyte/Getty Images