Non Consenting Divorce Laws in the U.S
While there exists a popular belief that getting a divorce with the consent of the spouse could be complicated and take a long time in Court, this is not true. Every individual has the right to both get married to who they choose to and divorce a partner if they feel that the marriage has or is failing. A lack of consent from the spouse does not actually delay or complicate the divorce proceedings.
The rules and regulations regarding the processes pertaining to a divorce can vary from State to State, and even within States, vary from a local court to a local court. Before approaching the legal system in order to file a petition for a divorce, it is necessary to discover what the regulations regarding divorce within the State where the dissolution is occurring.
What Kind of Divorce Proceeding Should a Partner Who Does Not Have Their Spouse's Consent for the Divorce Apply Under?
The easiest way to get a divorce irrespective of the State it is occurring in is to apply for a no-fault divorce. No-Fault divorce happens when one or both partners acknowledge that the dissolution of the marriage is no one's fault but rather due to irreconcilable differences or similar factors. While it is easier if both parties apply for a no-fault divorce, it is entirely legal and possible to follow through with the same if one partner applies for this form of divorce without the spouse's consent.
A no-fault divorce is available across every State in the United States, unlike fault divorces. A fault divorce happens when one partner has grounds wherein they can blame the dissolution of the marriage on their spouse. There are very specific conditions under which a person can apply for a fault divorce, some of which include but are not limited to:
- Physical, Emotional or Mental Abuse
- Imprisonment of spouse for a certain period of time or more, as indicated under the State's rules
- Mental Health Issues
However, there are some issues to consider before one can apply for a fault divorce. Not only are fault divorces not available in every state, but there is also a need to prove that the spouse is responsible for the marriage ending. At the same time, unlike in a no-fault divorce, the spouse can contest the charges, which can ultimately lead to a delay in the process.
No-Fault divorce, on the other hand, cannot be contested, and once the petition has been filed, it is only a matter of time before the marriage is dissolved. The spouse's presence is not necessary to dissolve a marriage using a default divorce.
What if the spouse refuses to be served the divorce papers?
Once a divorce petition has been filed, the next step is to serve notice of the same to the spouse. This can be done by giving the spouse the papers, or by leaving them with an adult relative other than the person who filed for the divorce. There are three main ways to serve divorce papers to the spouse, these include:
- By using a certified mail service
- By using the sheriff's service
- Through a registered process server
If the spouse does not accept the divorce papers, then they can be left with them as the point is only to serve them the legal document and ensure that they are aware of its contents. In case a spouse or a relative is unavailable at home, then a sheriff can also leave the documents at their work or upon finding them at any location. If the spouse still cannot be found, then it is considered enough to serve the notice by publishing it in a newspaper that has a general audience.
The spouse cannot actually refuse to be served the notice or refuse to sign it. In such situations, the person who petitioned for the divorce can apply for a default divorce.
What is a Default Divorce?
If the spouse fails to provide an answer to the divorce papers they were served within a statutory time, usually a period of thirty days, then the Court can go ahead and call a hearing for a default divorce. A default divorce happens when the spouse is unavailable at the hearing. The Judge can call the spouse to the hearing at a later date, but usually, such appearances are met unfavorably owing to the failure to attend the first time.
The information on the first hearing and any after that if necessary is provided to both parties by the court. During a default divorce, the Judge can dissolve the marriage even before matters pertaining to property or custody etc are resolved.