Divorce by Default: Dissolution of Marriage when Your Spouse Doesn't Respond
When you are filing for divorce, typically, one party files a petition with the court and the other party responds to the statements and allegations in the divorce papers. However, in some instances, the spouse receiving the divorce papers does not respond. As long as your spouse has received the divorce papers and they have been delivered to him or her in a way prescribed by the law—for example, served by a sheriff or process server—then you may be able to get a divorce by default, which is to say, you can proceed with the divorce without involving your estranged spouse.
Basics of Divorce Cases
The party who files for divorce and initiates the process is known as the petitioner. The other spouse is usually referred to as the respondent. Although the requirements for a divorce petition are different in every state, at its most basic level, this document outlines information about both spouses, as well as the reasons they are divorcing. It will also usually outline the terms of the divorce that the petitioner is requesting—for example, joint custody of children, child support, alimony, or half of the couple’s financial assets.
A divorce petition will typically contain the following information:
- The name, address, and date of birth for each spouse
- The names and dates of birth for any children born out of the marriage
- The marriage date and location
- The date on which the couple separated (that is, established separate residences), if they have already spilt up
- The reason the petitioner is asking for a divorce
- A financial affidavit listing each spouse’s income and assets
- A request for spousal support or child support
The possible grounds for divorce, or the reasons one or both parties wants to end the marriage, vary from state to state. While some states only allow “no-fault” divorces that do not require you to list specific reasons for divorcing, other states allow you to end the marriage on specific grounds, such as abuse, adultery, abandonment incarceration, or substance abuse problems.
Service of Divorce Documents
Once you have prepared your divorce papers and filed them with the court, you will need to provide your spouse a copy of the paperwork. Each state allows different means of serving divorce papers on a spouse, such as personal service by a law enforcement officer or process server. Other states allow you to serve divorce papers by certified mail. After serving your spouse, you will need to provide the court with proof that you served your spouse—for example, an affidavit signed by the sheriff who delivered the papers or a post office receipt signed by your spouse.
After your spouse receives the divorce papers, he or she will have a state-mandated timeframe in which he or she must file an answer to the divorce papers with the court. This “answer,” will give your spouse a chance to respond to any allegations or requests you make in the divorce petition. For example, if your spouse wants full custody of your children rather than joint custody, he or she can request this in the answer.
In some cases, your spouse will not respond to the divorce documents. If your spouse does not submit an answer to the court in the specified time frame—usually anywhere from 20 to 60 days--you may be able to request a divorce by default. To do so, you will need to file additional paperwork with the clerk of the court where you filed the initial divorce papers.
Requesting a Divorce by Default
Generally, the court will simply not grant you a divorce just because your spouse does not respond to your divorce papers. To request that the court enter a divorce by default, you will need to submit a separate petition to the court stating that your spouse did not respond to the divorce petition. You will typically also need to resubmit proof that your spouse was, indeed, served the divorce papers.
In some states, the court will not require you to attend a hearing for you to obtain a divorce by default. This is most common in cases where a couple does not have children or significant shared assets or debts. The court may, however, ask you to attend a hearing where he or she will review your divorce petition. In many instances, you will then be granted a divorce according to the terms outlined in your petition.
Stalling the Divorce Process
In some cases, a spouse who receives divorce papers will attempt to slow down the divorce process by failing to respond to your requests on time. In other words, he or she may respond to the divorce petition a day or two late. If your spouse submits an answer requesting arrangements other than those you requested in the divorce papers, the court may decide to proceed with a typical divorce process rather than granting you a divorce by default. That said, if you have evidence indicating that the spouse did not have legitimate reasons for submitting his or her response late (for example, an illness or misunderstanding of the legal process), then you may ask the court to enter a motion to hold your spouse in contempt of court. This may be difficult to do unless your spouse is taking extreme measures to hold up the divorce process, such as failing to attend mediation sessions, parenting classes, or other reasonable mandates that are relatively common in divorce cases.
If your spouse is responsive to divorce papers, but is continually late and contests most of your requests, the court might ask you and your spouse to attend mediation. During this process, you will, ideally, resolve the contested issues without having to involve a judge. However, if your spouse continues to be uncooperative, it is likely that the court will become involved in some way. Courts generally tend to favor cooperative parties, so even if your spouse is habitually late in responding to your petition or motions, patience and a constructive attitude can work in your favor.
Amending or Dismissing a Divorce Petition
Generally, the spouse who initially submits the divorce petition has the right to amend the divorce petition at any time before the court hearing or before the judge enters the order. The petitioner might chose to do so after speaking with an estranged spouse or simply having a change of heart on matters such as child custody or property division. If the couple attended mediation, this may also lead the filing spouse to want to amend the divorce papers.
Likewise, a petitioner can withdraw the divorce petition at any time before the judge enters a final decree. This may happen when one spouse does not respond to the divorce papers because he or she does not want a divorce and attempts to work things out with the petitioner.
Further Reading and Resources on Divorce
Divorce Laws of the Fifty States, District of Columbia and Puerto Rico This page links to the divorce laws of the states and to tables summarizing some of their salient points.
- Divorce: A Guide for Clients | Solo, Small Firm and General Practice Division
This book excerpt will help you understand what they are getting into when divorce proceedings begin.