When a Spouse Does Not Sign Divorce Papers

When a spouse refuses to sign divorce papers, the spouse seeking a divorce will need to obtain what is called a contested divorce. To file a contested divorce, the party who wishes to obtain the divorce must file a petition in the family court in their jurisdiction.

Only the spouse who is filing for the divorce must sign, however, the spouse requesting the divorce must formally notify the other spouse of their action by serving the divorce papers.  In a divorce situation, serving the other spouse with the divorce papers means that the other spouse is notified that their spouse has filed for divorce and given a chance to appear. The person serving the papers can be a private process server or sheriff.

If you are filing for divorce or in the process of negotiating, you can find an experienced family law attorney near you with our FREE search tool to make sure you are protected throughout the process.

Fault Divorce Filings Lead to Refusals to Sign

If you have filed for divorce under fault grounds for a reason, such as a hope that the court will award you a larger portion of the marital property based on your spouse’s actions during the divorce, you are free to pursue a contested divorce whether your spouse signs the papers or not.

To file a contested divorce action, you must file a petition in the family court in your jurisdiction. There is no need for your spouse to sign the petition; however, you will probably be required to serve your spouse with the petition in person. If giving your spouse the petition may be difficult, you may hire a private process server to deliver the divorce papers to your spouse personally.

Spouses often refuse to sign divorce papers because they are uncomfortable with the language used and accusations made as part of a fault divorce.

 

One way to prevent this problem is to agree to file the divorce under no-fault grounds, after which you may find it easier to persuade your spouse to sign the papers.

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The No-Fault Divorce Option

As of 2010, all 50 states offer the no-fault divorce option of irreconcilable differences. Filing a divorce under this option eliminates the traditional finger-pointing that often leads to a refusal to sign by one spouse. When filing using this option, only list and answer the required questions and avoid specifying any actual reasons for the divorce.

Additionally, give the opposing spouse notice that you will be filing the divorce papers as no-fault. Avoiding a surprise can often help couples avoid the dreaded refusal.

Contested Divorce

Courts have moved past the traditional requirements of finding cause for a divorce. In fact, every court offers a no-fault divorce. However, even a no-fault divorce can end in one of two ways: it can be contested or uncontested.

When a spouse refuses to sign divorce papers, the divorce is no longer placed on hold, but instead considered contested. Once the divorce becomes contested, a hearing must take place in order to establish the reasons for contesting the divorce and for the court to resolve those reasons.

If both spouses show for the hearing, the court will determine the legal terms of the divorce through testimony and evidence. The court will also decide on all settlements and divisions of property. In the interim, there are some things that you can do to try and resolve the issues and avoid allowing the court to make the decisions for you.

Mediation

One step that couples can take to resolve problems as an alternative to a drawn-out court hearing is to consult an impartial third party, a mediator. Many times, one spouse is refusing to sign the papers because the filed divorce seems unfair.

Meeting with a mediator can force those issues to the table where resolution takes place. More often than not, couples leave a mediation with divorce papers signed, settlement details in place, and everything ready to file. Should this be the case, only a short court hearing will be required to notify the judge that you plan to stipulate to the terms of the divorce.

To find a divorce mediator in your area contact your local bar association and ask for a mediator recommendation. Typically, your attorney will know local mediators and will determine which mediator to use with your spouse’s counsel.

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Divorce by Default Proceeding

If the spouse refuses to show for the scheduled divorce hearing and all attempts at negotiating have failed, the original filing spouse has the right to request a default divorce.

In this instance, the court will uphold the divorce request and all of the original terms. This means that all divisions of property, child support amounts, and custodial arrangements listed in the divorce papers will be the court’s final decision.

The reason the courts make this decision is that the court considers the opposing spouse’s absence to be an agreement to the terms of the divorce. The court will make the default finding as long as the other spouse was truly served with the petition.

Abandonment

Occasionally, a filing spouse is unable to get the other spouse to sign simply because that spouse cannot be found. In these instances, all courts allow for a filing of divorce under the reason of abandonment.

If abandonment is the reason listed, the court requires a certain waiting period, usually 6 months, and attempts to contact the spouse or requires the filing party to make specific types of attempts to contact the spouse. If all attempts fail, then the court grants the divorce without a hearing.

Case Studies: When a Spouse Does Not Sign Divorce Papers

Case Study 1: Contested Divorce

John and Sarah have been married for several years and have decided to get a divorce. John initiates the divorce process by filing the necessary paperwork, but Sarah refuses to sign the divorce papers. Since Sarah refuses to sign the divorce papers, the divorce becomes contested. John will need to proceed with a contested divorce by filing a petition in the family court.

Both John and Sarah will be required to attend a hearing where they can present evidence and arguments. If Sarah fails to appear for the hearing or cannot be contacted, the judge may render a judgment in favor of John, granting the divorce and deciding on matters such as property division, child custody, and support.

Case Study 2: No-Fault Divorce

Michael and Emily have decided to end their marriage. Michael files for divorce under no-fault grounds, but Emily refuses to sign the papers. In a no-fault divorce, specifying the reasons for the divorce is not required. Michael gives Emily notice that he will be filing the divorce papers as a no-fault divorce in an attempt to avoid a refusal to sign.

If Emily continues to refuse to sign the papers, the divorce will still proceed. The court will consider the divorce contested and a hearing will be scheduled to address the issues. During the hearing, the court will determine the terms of the divorce, including property division and child custody.

Case Study 3: Default Divorce

David and Lisa have been separated for a significant period of time, and David has filed for divorce. Lisa refuses to sign the divorce papers and fails to appear for the scheduled hearing. Since Lisa refuses to participate in the divorce proceedings, David can request a default divorce. The court will uphold the divorce request and make decisions based on the original terms outlined in the divorce papers.

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Bringing it All Together

Usually, both spouses must agree to the divorce either through reaching an accord and signing off on the divorce — via mediation or negotiation — or the court will decide the terms for them. In either case, both parties have to sign.

The only way you can get a divorce if one party won’t sign will be if the other spouse is properly served and simply doesn’t participate or if the other party can’t be found.

If you are going through a divorce or planning to file, an experienced divorce attorney can help. Use our FREE search tool to find family law and divorce lawyers near you.

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