Getting a divorce is one action that quarreling spouses might agree. However, there are possible situations when you want to sever the tie, but your spouse insists on staying married. What can you do if your partner won’t give you a divorce?
First of all, no one can force you to stay married. Your spouse doesn’t have the power to stop you from getting a divorce, provided you comply with the court rules in your state. It’s critical that you follow the applicable legal procedures and file all paperwork in a correct and timely manner. You have to meet certain residency requirements. For example, you might have to live in the state where you’re filing for a minimum period. You might also have to live physically separated from your spouse, for example, six or twelve months.
If your spouse is physically abusive towards you or your children or has problems with drug addiction or alcoholism, you might want to consider getting a restraining order.
It’s possible that your spouse can make it more difficult, but ultimately they can’t prevent your divorce from being finalized. Here’s how to make it happen:
Choose your grounds
When you file the paperwork with the court, you need to state the “grounds” for your divorce. That’s the reason(s) why you want to end your marriage. All states have a “no-fault” ground where neither party is responsible for the breakdown of the marriage because they have “irreconcilable differences.” You don’t need to be specific about why the marriage fell apart. Your spouse usually can’t contest the grounds when you plead no-fault.
Other possible grounds which vary by state include adultery, cruelty, domestic violence, and abandonment. However, if you specify one or more of these reasons, your spouse may contest your claim by saying that it didn’t happen or assert some other defense. You then have the burden of proving your allegations to a judge.
Service of process
It’ s critical that you follow your state’s and local court’s rules about service of process. That’s the official procedure that you use to notify your spouse in writing that you are filing for divorce, for example by personal service by a sheriff or registered process server, certified mail, or publication in a local newspaper after someone approved by the court unsuccessfully tried to find your spouse.
If you fail to comply with the court’s rules, your spouse can claim they weren’t served properly, which could stop the divorce process. You wouldn’t be permanently barred from getting a divorce, but you’d have to start all over again.
The law specifies how long your spouse has to answer your divorce petition by filing an official response. If they ignore it, you can file a request for default. This means that provided you filed for a no-fault divorce, served your spouse properly, and the time has elapsed for them to respond, then you might “win” automatically and the divorce will be granted based on the terms in your divorce petition. If you alleged grounds other than no-fault, you might have to present proof in court.
If your spouse answers your divorce petition but says he or she doesn’t want a divorce, you still can get a divorce. You need only one partner to say there are irreconcilable differences.
If you filed for no-fault and your spouse does answer by filing an official response to your petition in time, then you’ll need to go to trial if there are contentious issues about property division (e.g., who gets the house), and support and custody of minor children of the marriage. On the other hand, if you can agree on all these issues, some states will declare it to be an “uncontested” divorce which you can wrap up fairly quickly and easily.
If you served the divorce petition and your spouse filed an uncontested response, but they refuse to sign the final papers, then the court might consider it an uncontested divorce. Therefore, your spouse can’t stop the divorce simply by not filing the paperwork or failing to show up in court. In fact, they might lose their rights to dispute property division and support and custody of the children.
Requirements and procedures vary in every state, county, and court. The judge might require that both of you attend settlement conferences or mediation before trial. If your spouse fails to attend or cooperate, it might be to his or her disadvantage. Judges will likely look unfavorably at a person who is evading the court’s divorce process.
The bottom line
Your partner might have reasons why he or she thinks you should stay together. You might want to seek couples counseling to see if it’s possible to save the marriage. Just remember, no matter how bad the marriage, you’re not stuck there forever if you truly want it to end.
This information contained herein is for general, informational purposes only. You should consult an experienced divorce attorney in your state for specific guidance applicable to your situation.