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Can a divorce be filed without notifying the other spouse?

October 11, 2017 Our Blog

Although it is possible to file the papers to begin the divorce procedure without your spouse’s knowledge, unless it is an abandonment issue where the spouse cannot be found, you are going to have to serve them with the papers in order to actually proceed. In most cases, it is much better to give the spouse a heads up that the divorce will be filed. Although the conversation is sure to be an emotional one, being blindsided by having divorce papers served out of the blue is enough to make most reasonable people hurt and angry. This can cause a strain on the proceedings and the spouse to retaliate, which can include contesting the divorce, delaying the final judgment, and trying to get more out of the financial settlement than what they are due. This makes the whole process harder on everyone.

In all 50 states you can file a “no fault” divorce, which means that the terms of the settlement will be governed by the law and no personal details of the marriage need to be dragged into the proceedings. It can be done quickly and easily and both parties can move on with their lives.

In some states it is still possible to file a fault divorce. This basically means that the party filing for divorce claims that the divorce is needed because of actions taken by their spouse during the course of their relationship, and that they are therefore entitled to more of the financial assets in the settlement. This process is long and emotionally draining, as both parties will have to appear in court and give testimony about very personal details of their lives and relationship. Unless there is a large amount of financial assets involved, it is probably not worth it to file a fault divorce.

There are a few ways to notify a spouse of a divorce being filed. The obvious way is to serve the paperwork to them yourself, but this can be a difficult and emotional task. You can hire a process server, someone to serve the papers to your spouse on your behalf. Some states also allow papers to be served by certified mail, or an officer of the county sheriff’s office can serve the papers.

If for some reason the whereabouts of your spouse are unknown and they cannot be found, you can file for abandonment. In this case the judge will specify a local newspaper that you can post a public notification of your intent to divorce in and a time period you must wait to give your spouse time to answer. If the spouse doesn’t file an answer with the court within that time period, the divorce will be finalized and a settlement awarded according to the law.

If the divorce papers are served and your spouse refuses to sign them, it becomes a contested divorce. This does not mean that the divorce itself is contested, but that the terms of the settlement are not agreeable. A spouse cannot argue against the dissolution of the relationship, only the terms of it. In this case, the judge will either send the matter for mediation or schedule a hearing on the matter. If your spouse doesn’t show up to either of these they can be held in contempt of court and in most cases settlement will be awarded as originally set forth in the divorce papers.

The basic answer to the question is yes, you can file for divorce without the other party knowing, but the divorce cannot be finalized without their knowledge. You can, however, file a divorce and settle the matter without the spouse’s consent. Both parties don’t need to agree on the divorce in order for it to proceed. The first step should always be to consult with a lawyer.

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