What if My Spouse Doesn’t Cooperate?
Most clients want to have an uncontested divorce, but for that to happen both spouses have to cooperate in the process and voluntarily notarize the Marital Dissolution Agreement (and Permanent Parenting Plan for cases with children). Being unsure about whether your spouse will sign is a source of a lot of anxiety and questions, so here’s what happens:
Getting Served
The most common solution is to go ahead and file as a contested divorce and send a process server to your spouse with the Complaint for Divorce. This is a different process than an uncontested divorce in that only the Complaint (that is the lawsuit) is filed and specific grounds for divorce, such as inappropriate marital conduct, are plead in the Complaint. Also, we always ask for every single thing that is theoretically possible under the law, so the initial Complaint is usually a broad and generic request for relief from the court and doesn’t always include a lot of specifics about your case in particular other than the personal information like names, addresses, and such.
Once your spouse is served, they will then have thirty days to file a written response called an Answer. If they elect to hire a lawyer, then the lawyer will file the Answer and often a Counter-Complaint, which means your spouse is suing you back for divorce. Defendants sometimes file their own Answers, but let’s just say that’s not a good idea at all.
Default Judgments
If your spouse gets served and does nothing about it and just ignores it, then we will file a Motion for Default Judgment. A motion is simply a request of the court to issue an order about a particular topic or procedure. Clients don’t usually attend motion hearings as they are most often just legal arguments between lawyers and the judge. If your divorce case is declared to be in default, then that means we can proceed with the divorce without your spouse’s consent or participation. We will then set a court date for a Final Decree hearing and you will have to bring a witness to court to verify your grounds for divorce, which simply means you have to tell the judge what your spouse did wrong and have someone there who knows you back you up and agree with you. It is okay to be vague and just say things like “there was domestic violence in the home,” and move on.
Instead of having an agreement signed by both parties there will be a court order from the judge declaring what each person receives. Your lawyer will also propose a parenting plan order to the judge for approval.
Missing People
So what happens when your spouse can’t be served because they are missing or evading service? If you have performed a due diligent search and inquiry into your spouse’s whereabouts and still can’t locate them, then they can be served by publication notice. That means your lawyer will run an ad for four weeks in a newspaper in the county your spouse last resided, and then they are deemed to have been given sufficient notice of the divorce. The judge will ask you what you did to attempt to locate them, so you need to contact every family member or friend that knows them as well as search social media and google for any leads. When you get a default judgment based on publication notice the court will only grant you a divorce but won’t divide your marital estate and any child issues will usually be reserved for future determination if your spouse shows up.
If your spouse is around but evading service of process by refusing to open the door or running away from the server, the best option is to serve them by certified mail as you would know where they reside but they are uncooperative. The court allows that in those circumstances even if your spouse declines to sign the certified mail receipt from the postal carrier.
Contested Divorces
If your spouse is properly served and either files their own Answer or hires a lawyer, then you now have a contested divorce. These cases are open-ended in nature and don’t really have a reliable timeframe for being resolved. The quickest way to resolve them is to exchange documents and information voluntarily between the lawyers and then exchange offers. If there is still no way to settle, then the case should be set for mediation. Most cases will settle at a mediation conference but occasionally stubbornness and resentment prevail and the case will go to trial. Lots of other things can happen in a contested divorce, but always keep in mind that settling is nearly always preferable than going to trial.
