What if my spouse doesn’t want a divorce?

Q:

What if my spouse doesn’t want a divorce?

A:

Prior to the passage of no-fault divorce laws, it was necessary for the spouse requesting a divorce to provide evidence that their spouse had committed a breach of the marital contract. Common grounds for a fault divorce included insupportability, cruelty, adultery, a felony conviction, abandonment, and confinement in a mental hospital for a specified period of time.

Now that no-fault divorce laws have been instituted, however, spouses no longer have to prove their spouse is at fault. In fact, all states allow for a no-fault divorce and may simply require separation for a specific time period, or evidence that the couple has irreconcilable differences or that they are incompatible.

What is the easiest type of divorce?

If you and your spouse agree to get divorced, the simplest and quickest method to obtain a divorce is through an uncontested divorce. In an uncontested divorce, both you and your spouse must complete the necessary paperwork. You must agree on the most contentious divorce issues—property division, child support, child custody and spousal support—and you must create a mutually satisfying agreement. Finally, you must bring the divorce agreement to court and allow the court to review and approve it.

Unfortunately, however, not all divorces are this simple, and spouses often do not cooperate.

What if my spouse does not consent to divorce?

Allowing no-fault divorce not only makes it easier to file for divorce, but it also allows a spouse to pursue divorce regardless of whether their spouse consents or approves of the divorce. So while most couples may wish for an uncontested divorce, even if a spouse opposes the divorce and attempts to delay it, they will not be able to stop the divorce unless the filing spouse changes their mind and decides to reconcile and remain married.

Tactics a Spouse May Use to Delay the Divorce

The good news is that a non-consenting spouse cannot completely stop a marriage. The bad news is there a variety of tactics that a non-consenting spouse can use to stall/delay divorce.

1. They refuse to accept the divorce papers.

If you have decided to file for divorce, you generally have to serve notice to your spouse, which includes a copy of the divorce petition and an explanation of the lawsuit. Notice can be sent via a certified letter through the mail following your divorce filing, or through a legal processor. State laws require the spouse to respond to the notice within a specific number of days.

In some cases, a non-consenting spouse may refuse to sign for the mail, or they may avoid the processor. Regardless of what they do, however, you may have other options to legally give notice to your spouse.

Additionally, in some states, you may be allowed to request a default judgment if your spouse does not respond within the required number of days or if you cannot locate your spouse. In fact, it’s likely that the court may schedule a hearing. If a hearing is held and your spouse does not appear, the court may issue a ruling without input from your spouse.

2. They insist on counseling or additional attempts at reconciliation.

Under some conditions, the court may require a couple to attend marriage counseling. However, even if you have to attend counseling, unless you decide to reconcile, the divorce will eventually proceed.

3. They attempt to delay the divorce through threats or violence.

Other tactics that can be used to stop or delay a divorce include violence or threats of violence. While this may seem like a good idea to the threatening spouse, it will not stop the divorce. In fact, not only can it speed up divorce in some cases, it could also lead to a restraining order. If the threats or violent actions are serious enough, there could also be a criminal arrest and conviction.

Bottom Line

Gone are the days in which a filing spouse had to provide evidence that a spouse was at fault for the dissolution of a marriage. In fact, given no-fault divorce laws, cooperation and agreement that a marriage should end are not needed. Although a non-compliant spouse can delay or stall a divorce, making the process more difficult and expensive, the divorce itself cannot be prevented if one spouse is determined to go through with it.

However, given the contentious nature of divorce, it’s generally more cost-effective and less emotionally destructive if couples can cooperate during the divorce process. This is especially true when children are involved and there are decisions about custody and support.

So, what can you do if your spouse does not want a divorce? Understand that your spouse does not have any legal tools to stop the divorce. What they do have, however, is the power to delay the divorce and make you miserable, at least for a while.

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Whether you're facing a legal issue or just seeking information, Justipedia aims to be your most trusted resource for legal information on the Web. With the help of legal professionals across the country, we put the law in plain language to help answer your top legal questions.

Justipedia was founded by Internet veterans Cory Janssen and Mitchell Allen. Janssen founded Investopedia.com and grew it one of the largest investing sites on the Web. Allen is an author, speaker and the founder of LeadRival, the leading provider of pay-per-action advertising in consumer legal services.

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