People preparing to file for divorce often feel anxious about the process. They worry about ending up in endless litigation with a spouse or triggering an angry response from a spouse who has a history of instability.
For some people, the biggest fear is that they may not have grounds to file for divorce. For others, their fear may be that their spouse can prevent them from obtaining a divorce. For example, a spouse might try to avoid service with legal paperwork or may refuse to respond to a divorce petition.
Can one spouse who doesn’t want to divorce force the other to stay married by refusing to respond to legal paperwork?
Divorce only requires the consent of one spouse
Technically, the family courts only require the input of one spouse to grant a divorce. The spouse who wants to end the marriage files a divorce petition with the family court. They then have an obligation to serve paperwork to their spouse.
Typically, people use process servers to formally provide basic information about the divorce filing, including proposed terms for property division settlements and custody arrangements if the couple shares children.
It is necessary for the spouse serving paperwork to respond by filing their own paperwork with the family courts if they disagree with the proposed terms. If they fail to do so, the spouse who filed the initial paperwork can request that the courts move forward with a divorce by default.
In most cases involving in-person service with the initial divorce paperwork, the recipient or responding spouse has 20 days to answer the filing. In cases where they avoid legal service, their spouse may need to serve them by publishing notice.
In rare cases such as notice by publication, there may be 30-day window for the responding spouse to answer the initial filing. If they fail to do so, the filing spouse can move forward with the divorce without their input. The spouse who petitioned for divorce can effectively set the terms without input from the responding spouse if they ignore the paperwork.
Learning about the rules that apply during the early stages of a pending divorce can help people know what to expect.