In the case of a legal divorce, one party may not cooperate with the action, sign any agreements or negotiate any terms. The laws of each state govern the process of divorce, and all set down guidelines for actions in the case of a non-cooperative respondent.
In order to obtain a divorce, you must first file a Petition for Dissolution of Marriage in the civil court of the county where you live. Many states have residency requirements. In California, for example, you must live in the state for at least six months and in the county where you file for at least three months, before filing the petition. In addition, there may be a waiting period imposed between the date of filing and the earliest date the court may grant the divorce.
As the petitioner, you must have the Petition for Dissolution of Marriage served on the respondent, your spouse. You can effect service through a sheriff’s department or through a private process server. The object of service is to provide legal notice to the other party of a court action. If the respondent is unavailable or avoids service, state laws provide for service through publication – the petition is placed in a newspaper or other public media, putting the other party legally on notice. The states also have laws on waiting periods between service and the deadline for an answer from the respondent.
If you have carried out service, but the respondent still does not provide an answer or contests the divorce, you must petition for a final judgment of divorce from the court. The time needed depends on the court schedule and any laws the state may have concerning a waiting period before a final decree can be signed by a judge. In New York, for example, there is a mandatory 40-day waiting period if the respondent does not file an answer or an Affidavit of Consent, which allows the divorce to proceed immediately to a hearing. If child custody and other issues are contested by the respondent, then you must attend a hearing at which a judge or jury will hear testimony from both sides and then render a decision.
Hearings and Orders
At the hearing, either you submit a contested divorce agreement for the approval of the judge, or the court renders its own agreement. A contested marital settlement agreement does not require the signature of the respondent. If after the hearing the respondent still does not cooperate with the terms of the divorce, you must file motions and proposed orders to enforce the agreement, which will then be placed in the hands of law enforcement to carry out any seizure of property, garnishment of wages for child support and other matters.
References & Resources
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