The best-case scenario for a divorce is an uncontested divorce, in which both parties agree to the dissolution of the marriage and cooperate in the dividing of marital property and determining things like alimony and custody (if necessary). But sometimes one spouse refuses to participate in the divorce process, making it difficult to complete the divorce process.
Contrary to popular belief, you do not need both parties to sign the papers in order to finalize a divorce. All you need is to file a petition for divorce and make sure you can prove your spouse is aware of the petition. Further, you have to be able to show you gave them a chance to respond, and each state has their own time requirements before the Court will find someone in “default.” In Illinois, all contested divorce cases start by serving your spouse with divorce papers. If he or she does not respond within 30 days of receiving your petition for divorce, or otherwise file any motions with the Court, you can ask the Court to find your spouse in default and to set the case for hearing on a default Judgement. If your spouse does not show up to court on the appointed date, the court may decide to grant you a default divorce. By failing to respond or show up to court, your spouse forfeits their right to have a say in the divorce process or judgment.
However, there are some instances in which the spouse cannot be located. So long as you can attest to the Court that you have made all reasonable attempts to locate your spouse, you can get what is known as a publication by divorce, in which you publish notice of you your petition for divorce in the local media outlets of the last known whereabouts of your spouse. Your notice has to run a certain number of times before the Court will accept service by publication, so it’s important to check your local Court Rules or consult with an experienced attorney for the required procedure. If your spouse still doesn’t do not respond within 30 days, most courts will grant a default judgment.
If your spouse did file a response to your petition for divorce, but refuses to participate further in the process, the judge may proceed as though it is an uncontested divorce, but you might have to wait to be assigned a court date. If you get a court date and your spouse fails to appear in court on the appointed day, the judge may enter orders based on the divorce petition and response.
As always, a competent family law attorney can help with this process, as even seeking a default divorce can be stressful since there are specific rules you must follow. If your spouse thinks they can avoid divorce by simply refusing to sign the papers, a letter from your attorney can set them straight. When they see that the divorce can proceed with or without their cooperation, most people will choose to cooperate in the divorce. There are many reasons one might refuse to sign divorce papers, but an experienced family law attorney can usually ensure that the divorce proceeds according to your wishes.
The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, criminal cases, and all types of family law for more than 20 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests.