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Can I file for a divorce even if he doesn’t consent?

October 10, 2017 Our Blog

There is a common misconception that both spouses must agree to a divorce in order for it to proceed smoothly. In fact, consent is never required in order to file for divorce. A lack of consent may make the divorce process more of a hassle, but it won’t delay the legal proceedings on the grounds of consent alone. A person is generally free to divorce his or her spouse at any time regardless of how the other person feels.

Filing the Petition and Serving

All divorce processes start with filing a petition for divorce. This petition outlines the reason for the divorce and the initiating spouse’s demands. They must then serve the divorce papers to their spouse by legal means. If the person knows where his or her spouse can be found, then it is usually easy to fulfill the legal requirements of serving the documents. If the spouse cannot be found, this is a little trickier, but it is still possible. The spouse can be served directly or by utilizing the sheriff’s service or a registered process server. Mailing the documents to a known address by certified mail also constitutes serving. If the spouse cannot be found and an address is not known, then some jurisdictions will accept publication in a local newspaper as fulfilling the legal grounds for service. Most jurisdictions require the initiating spouse make a concerted effort to locate their partner before declaring they cannot be found.

The other spouse does not have to agree with anything at this point. As long as the initiating spouse serves the documents properly, they have fulfilled their legal requirement. The other spouse does not have to accept the papers or even read them. Serving the papers triggers several legal steps to divorce. It is up to the other spouse how much they are willing to participate in this process.

Response to the Petition

Whether the other spouse agrees to the divorce or not, they will need to respond to the petition in order to participate in the divorce. Some people assume that if they ignore the divorce petition, then the divorce will be effectively stalled. This is not the case.

Once the documents are served, a deadline is set for answering the petition. A hearing date is usually set for sometime after this. If your spouse chooses to ignore the divorce and this deadline passes, you may attend the hearing yourself. If your spouse does not show, then the court generally considers the divorce uncontested. The judge will typically grant you whatever reasonable requests you have. The divorce must still be considered fair and equitable according to state laws even if it is uncontested. You probably won’t be able to convince the judge to give you 90 percent of the marital assets, for example, but you would likely get half and be able to pick and choose whatever you wanted.

If your spouse does respond to the petition and does not consent, this really doesn’t matter from a legal standpoint. Every person has the right to divorce. The legal process will proceed in basically the same manner regardless of your partner’s disposition.

Fault and No-Fault

Decades ago, all states required some fault or wrongdoing in order to file for divorce. If the other spouse didn’t agree, then the initiating spouse would have to prove this wrongdoing. The at-fault spouse would then get a lower share of assets during division as well as any other applicable penalties.

Today, the reverse is true. All states have some form of no-fault option. Spouses still have to give a reason for divorce, but they don’t have to prove fault. They may simply state “irreconcilable differences” or something similar. Many states still have a fault option, but it is a choice whether or not to file that way. If the spouse chooses the fault option, he or she will probably have to prove it.

In the modern world, how your spouse feels about a divorce matters very little from a legal standpoint. The process is identical regardless of consent, and ignoring the proceedings only jeopardizes a person’s interest in the divorce. So long as the proper paperwork is filled correctly, you could divorce your partner without getting them to agree or even interacting with them. It is important to consult with an attorney before making any filing decision to ensure that everything is done correctly and legally.




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