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.
Default Divorces are More Common Than You Think
Non-responsive spouses: How common are they?
This article is accurate and true to the best of the author’s knowledge. Content is for informational or entertainment purposes only and does not substitute for personal counsel or professional advice in business, financial, legal, or technical matters.
james roberts jr on July 15, 2020:
can anyone tell me dose the courts on shutdown stop my defualt papers
Sandra on May 13, 2020:
I have entered into default. It is frustrating as clerks are so rude. I was waiting for judge to take action. I called the court and the clerk told me I was missing documents when I have received the paperwork that my case was already in default process. What other steps do I need to take as this point ..?? help???
Sam on December 03, 2019:
My husband is very jealous of my children. One day I went to lunch w my daughter and came home he had taken the dead bolt key off my key chain and bolted the doors closed.
He has been stealing my
Money for the past year to support his new girlfriend. Apparently as soon as he bolted the doors closed he was engaged to someone else. He cut the head off of a snake and put it in my car so I was to afraid to go to court. I was also very ill at the time can I still get an attorney to request a new hearing so I can request alimony and half of our house? He did this at a time when he knew I could not respond to the divorce papers due to my illness .... any advice
Ed on October 31, 2019:
Hire an expert process serving company to serve the legal documents.Once served you will be given a notarized affidavt to file with the court. A good process serving company knows the best tactics to use when a spouse trys to avoid service. Make sure you hire a Process server with a good reputation in the indsutry.
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Joey Trevino on September 17, 2018:
My wife's ex husband is telling her that they are not divorce when she got the papers from the UPS sign. Does that mean she's not divorced?
Smarmy2 on September 13, 2018:
I walked into the room, I saw my wife, someone I thought was my friend, her mother, her lawyer etc etc.
When I realized I was literally the only man in the room I dumped everything in the trash as I walked out the door. I never saw her again.
I got all the debt and she got a new car that I guess she bought the day before.
I still love her and feel guilty even looking at other women so I never dated again.
it's been 17 years.
amitsen46 on September 05, 2018:
let me tell you very frankly that my divorce is not by default but i have decided to leave my ex wife & no body can tell me that i am a mad guy who took this bold decision in a heat of moment... not at all! rather i will say that i have taken this decision knowing that my ex wife will never come back to me again in my life .. but still i want divorce by all means which i got finally in 2014 & i am from delhi( india) where divorce is not a good thing.
amitsen46 on September 05, 2018:
let me tell you very frankly that my divorce in not by default but i have decided to leave my ex wife & no body can tell me that i am a mad guy who took this bold decision in a heat of moment... not at all! rather i will say that i have taken this decision knowing that my ex wife will never come back to me again in my life .. but still i want divorce by all means which i got finally in 2014 & i am from delhi( india) where divorce is not a good thing.
Idontwantadivorce on March 10, 2018:
In the state of Indiana, how can there be a court date set If I never received court papers?
Mercedes B. on February 26, 2018:
If someone is married, and his wife accrues a bunch of debt while they're together will he have to pay for it in the divorce?
Also, the wife gas student loans unpaid for and he was the co-signor does he then have to pay for that to complete the divorce process?
What is the legal action he can't take to avoid taking on her debt?
Monica Estrada on January 16, 2018:
I filed for a divorce and my husband hasn't responded he was served on December 18 2017 so it's been more then 20 days so what do I do
Dee on August 25, 2017:
Our divorce trial was last week. We were pro see. Judge was a bully and said we needed to come to an agreement we did and to find a lawyer to draw up the agreement I found one but now my husband is not responding to the emails and I don't know what to do at this point I can't contact him at work he went no contact you won't answer the phone at work his cell phone so I sent him an email and he's not responding so I don't know what to do at this point. Please help me I have no money and can't stay married to this evil man. Have been fighting for a year and a half..
Kendra on July 28, 2017:
Today I filed for a default divorce. I bought the packet from the clerk, filed it out, attached all needed documents, made two copies of everything and attached two envelopes with postage for both parties as requested. Now im waiting for an answer from the judge.
Angela on March 24, 2017:
Hi. I have filed divorce papers in 2001 in sacramento, never finished. It still an open case. I want to finally get it done, recently went back. They told me to request papers cuz its been so long, i did, then i was told to go on line to see my next step. It says file a default. Im so confused, its still telling me nothing. Why is it si complicated, my respondent has no issue finishing it as well. Not sure what to do.