How to get a divorce even if your spouse refuses to participate

You decided you want a divorce, you file for a divorce, and then…*crickets*… your spouse, for whatever reason, has decided not to participate in your divorce. Perhaps your spouse doesn’t understand the legal process, doesn’t want to get divorced, or he/she is upset that you filed for divorce and intends to do anything possible to make your life more difficult. If this sounds like you, don’t worry. YOU HAVE A RIGHT TO GET A DIVORCE, even if your spouse chooses not to take any part in it.

If you are experiencing the problem above and you wish to proceed with a divorce even in the face of an uncooperative spouse, you will need to seek a default judgment. In order to do so, you must follow very specific procedures to ensure that you will be granted a divorce. The following is a very general overview of the required steps (note that there may be additional forms or procedural steps that must be taken within each subsection which are not covered here).

1) Prepare and file a Petition for Dissolution.

If you anticipate that you are going to have to go through your divorce without participation of your spouse, your Petition should be very detailed regarding what you are seeking and all property that needs to be divided in your divorce. If you already filed a basic Petition and later found out that your spouse is not cooperating in the divorce, you will likely need to re-file an Amended Petition with much more detail.

2) Serve your spouse.

If you have an uncooperative spouse, you will likely need to personally serve your spouse with all of the required divorce paperwork. If your spouse cooperates, he/she can agree to be served by mail and sign a form acknowledging receipt of the documents.  Proof of service must then be filed with the court.

3) Wait 30 days for a response.

Once served, your spouse has 30 days to respond to the Petition by filing a Response.

4) Prepare and serve your financial disclosures.

Whether your spouse chooses to participate or not, you are required to serve the necessary financial disclosure documents and file proof of such service with the Court. If you don’t anticipate your spouse responding within 30 days and you will be seeking a default judgment, get your financial disclosures done right away.

5) Prepare and file the necessary forms for a default judgment.

Once 30 days pass without a Response filed by your spouse, you may now file your final judgment paperwork with the Court (the forms necessary depend on the orders requested). If you anticipate that your spouse will not file a Response, you might prepare your paperwork during the 30-day period, so that it is ready to file immediately.

6) Wait for the Court to process your paperwork.

Once you have filed all of the necessary paperwork and requested a default judgment, you must now wait until the Court’s clerk processes all of your paperwork and then submits your paperwork to the judge to review. There is a chance that, if your spouse has had absolutely no participation in your divorce, the judge may request that you appear in court to testify that all of the information contained in your paperwork is true. If all of your paperwork is in order, and the judge approves, your divorce judgment will be entered. (Don’t forget that the 6 month waiting period still applies, so even if a judgment is entered within a couple months of filing for divorce, you will not be legally single until 6 months has passed). Once processed, you will receive the final judgment form the clerk by mail.

As noted above, the requirements for each of the above steps (forms, etc.) will vary depending on what you are asking for in your judgment, and, for the sake of brevity, there may be more detailed procedural instructions that were not included above. If you are seeking a divorce by default, is critical that each step and form is completed correctly. Otherwise, it may result in the Court’s rejection of your forms and unnecessary delays to the process. It is important that you consult with an attorney in order to ensure that your interests are protected and the necessary steps are completed properly.

Please contact us if you are considering divorce from your spouse, a legal separation, or have questions regarding the default judgment process. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

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