My Spouse Will Not Sign Uncontested Divorce Papers. What Do I Do Now?
While it has been our experience that spouses will usually agree immediately, or over a period of time to sign uncontested divorce paperwork, sometimes our clients do find themselves at an impasse where nothing seems to work. In the unfortunate event that your spouse refuses to agree and sign uncontested divorce paperwork then you will need to file your case in a legal proceeding known as a contested divorce.
To file a contested divorce, the party wanting the divorce must acquire the correct legal petition and file the petition in the family court of their legal jurisdiction. At the time of filing the divorce case, only the party filing the complaint for divorce (request for divorce) will be required to sign the paperwork. The other party is notified of the petition once the paperwork is filed via office service by a sheriff or licensed process server. The service of the complaint for divorce will inform the other party of the petition and will give the other party a court date to address the matter. Again, in obtaining legally sufficient service of the divorce document on their spouse, the party filing the divorce paperwork must use either a sheriff or a private process server to deliver the divorce documents to the opposing party.
Why Won’t They Sign?
There are many reasons why a party may refuse to sign an uncontested divorce, but a common reason that many refuse to sign is due to the filing of fault divorce pleadings that place the blame of the divorce on them. Often times, a party will use the fault in the divorce to acquire a larger award of marital property, custody, etc. based on the faulty spouse’s actions. If this is the case it is advisable to pursue a contested divorce as it will allow for a judge to make a ruling in the matters on your case as a judge will not rule in an uncontested case. If you are truly intending to file an uncontested divorce, you should be careful in your language choices as not to offend your estranged spouse. The best way of doing this is to file the uncontested divorce under “no fault” and to try not to include allegations in the complaint for divorce that will only anger your spouse.
Another reason a spouse may not sign uncontested divorce paperwork is because he or she does not understand the process and is afraid to sign the uncontested divorce paperwork. When this happens, we suggest that the other party meet with another attorney to review the documents. This will usually alleviate any fears and reservations they initially had to signing the divorce paperwork. Communication is also important. In a calm manner find out what your spouse is concerned about and work toward alleviating their concerns by possibly changing terms and language in the paperwork that you can both agree to.
The No Fault Divorce Option
The No Fault Divorce Option allows for the spouses to file their uncontested divorce with the reason of “irreconcilable difference.” This option eliminates offensive language and prevents one party from being placed at fault for the divorce. This option streamlines the divorce process by requiring less background information or answering questions as to why the divorce is necessary. All states within the United States currently allow for spouses to select the “no fault” option of “irreconcilable differences” when filing for an uncontested divorce.
Although you may want to file a “no fault” divorce, it may still be contested. The fact that it is contested simply means that the other spouse will not willingly agree to accept and sign the divorce papers to present them to the court. If for some reason your uncontested divorce falls through, you may take the case off hold by declaring the case contested. If you do declare the case to be contested then a hearing must be held by the court to resolve any immediate contested issues on a temporary basis and to establish a court date to have a final trial resolving all issues permanently. At some point the court will inform both parties of a later court date in which the court will evaluate both parties’ evidence and testimony. At this final hearing, the court will equitably divide all marital property and debt, establish custody, establish child support and decide if alimony is warranted. Before you go to your final hearing, the court will generally require both parties to attend a mediation process to resolve the issues amicably if possible. If the parties do reach an agreement in mediation, the agreement will be written up in a settlement agreement to be signed by both parties and submitted to the court for approval in lieu of final trail.
Mediation is an effective way to resolve contested matters outside of the legal system prior to a court hearing. In mediation, a neutral third party will act as a legal liaison between the parties to assist the spouses in formulating a resolution on contested issues. This process allows for both spouses to discuss what they are asking for in the divorce and to negotiate with request that each feels are unfair or non-negotiable. The mediator will force both parties to address the contested issues in order to achieve a settlement. And in most situations the couples will reach a settlement and agree to sign the agreement to avoid going to court. This is because the parties realize that in a trial neither party may acquire what they want from the divorce, and settlement give both parties to feel like they partially won on issues they feel strong about.
If a settlement agreement is reached, the parties will only attend a short hearing to inform the judge that they agree to the terms stipulated in the divorce agreement. If both parties agree then the settlement agreement is signed by the judge and entered as a final divorce document. If you and your spouse cannot agree on a neutral mediator, you may request a recommendation for a mediator from the local bar association for your particular jurisdiction / local area. If you believe that the other party may agree to use a mediator by your recommendation then your attorney may refer you to an impartial mediator.
Divorce by Default Proceeding
If for any reason the other spouse refuses to attend the court hearings and refuses to negotiate or attend negotiations then the filing spouse has the ability to request for a default divorce to take place. A default divorce proceeding will allow for the divorce to take place and will often grant the filing spouse’s original terms for the divorce, subject to the court’s approval. In a divorce by default the judge may grant the division of property and debt, child support, child custody and alimony based on what the filing spouse requests. If the court approves the requests of the filing spouse, these requests will be made a part of the court’s Final Judgment and Decree of Divorce. The court does this because the court recognizes the other party’s absence at the legal proceeding as an indication that they are no longer contesting any of the terms of the divorce. Also the court will only grant and maintain a default divorce as long as the other spouse can prove that the other was rightfully served with the petition for divorce, and therefore was made aware of the hearing date.
Service By Publication
In some instances a spouse cannot be served with legal paperwork because they cannot be located or found so they can be served with divorce papers. If you are unable to serve the other spouse with your complaint for divorce, you should ask the court for permission to serve your spouse by publication. The spouse filing the divorce must document their attempts to contact their spouse by affidavit describing their efforts. Once the request approved by the court and service by publication is perfected, you can move forward with the divorce process. While technically this is a contested divorce, if a spouse is evading service and staying out of contact, they are usually less likely to object to a divorce when served by publication.
Do Not Make it a Surprise That You Want an Uncontested Divorce
If you truly want an uncontested divorce, do not surprise your spouse with the divorce paperwork. An uncontested divorce means that you and the other spouse are in complete agreement to all of the terms of the divorce. An uncontested divorce is is only possible if you work together with the other spouse to reach an agreement. Couples must be able to agree and work together to obtain an uncontested divorce. If you attempt to surprise your spouse with divorce paperwork, you may ruin the possibility of achieving an uncontested divorce. The uncontested divorce option is something that should be discussed thoroughly by both spouses and both should reach an agreement prior to the signing and filing of the initial petition for divorce.
If you find yourself struggling with an uncontested divorce, call us at 770-609-1247 to speak with one of our experienced Georgia uncontested divorce attorneys now.
Content Revised: 2015-12-08