Anyone going through a Divorce can attest to how stressful and complicated the process can be. This much is obvious.
Time and time again, studies have shown that getting a divorce is often one of the most stressful life events. To make matters worse, many find themselves in a less than amicable divorce, with a spouse who may say that they will “refuse to sign the divorce papers” when they are served.
For some reason, Hollywood seems to be obsessed with ‘signing Divorce papers’ and creating a variety of intrigues surrounding this task. Many soon-to-be-divorced couples may envision they too may have one of these dramatic divorces as perpetuated in the media, but the truth is, thinking you need your spouse to “cooperate” by signing papers, or somehow “agreeing” to the divorce, is false.
What does it mean to be an “uncooperative spouse”?
When someone states that their spouse is “uncooperative” they are usually referring to:
- the spouse or respondent does not wish to sign the ‘proof of service’
- the spouse does not wish to be divorced
- the spouse does not agree on issues that the parties may have
…but when it comes to divorce in California, it can be finalized even if the spouse does not want to “sign the divorce papers”, be divorced or agree on issues!
What to do when your spouse won’t sign the ‘proof of service’?
- have a friend or family member (not a child of the marriage) serve the spouse
- arrange for a process server to serve the spouse
- arrange for a sheriff to serve the spouse
Remember, ‘service’ is the start of the divorce! The court requires a ‘proof of service’ which is a formal notification that a divorce petition has been filed. It is mandatory that service is made, but the spouse or respondent does NOT need to sign anything as the other people listed above will do that!
In California, a divorce can proceed through the courts, and can be finalized…even if the spouse refuses to sign any papers.
Here’s how it works:
- Petitioner files for divorce
- Petitioner serves spouse–if spouse refuses to sign proof of service or does not appear to be cooperative, spouse can be served by someone over the age of 18 (not a child of the marriage) or by a process server or sheriff; in this case the person who serves, signs and dates the Proof of Service; the spouse simply receives the paperwork
- Spouse may not wish to respond or do anything with regard to the papers served; if this occurs and the 30 days to respond have passed, the petitioner can then file ‘default’ paperwork with the courts
- If there are issues that need to be resolved, the petitioner (not the respondent) will go before the judge and he/she will usually make a decision based on what is reasonable.
- If there are no issues to be resolved, the petitioner may not have to appear in court at all; the divorce would be finalized without an appearance
What if your spouse does not wish to be divorced?
You can still get divorced. Arrange for someone else (not a child of the marriage) to serve your spouse. Wait the 30 days and then file a ‘default’ when he does not respond (meaning he does not file a ‘response’ with the court). If you have no issues (support, custody, If you have no issues (support, custody, division of assets & debts) then in most courts you will be divorced without going to court. If you have issues you will go to a ‘default’ hearing and the judge will make a ruling (your spouse will not be invited).
However, if your spouse does respond then you will need to go to trial unless, during the divorce process, the spouse is willing to cooperate and sign a ‘stipulated judgment’ which is an agreement with regard to any and all issues.
What if you cannot agree on issues like support, custody etc.?
You can go to court for temporary orders by filing a Request for Order and then file for a trial date. In these instances, the judge will make a ruling on all issues.
Questions about your divorce? Give us a call – we are here to help!
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Why a default divorce is a good thing:
A ‘default divorce’ is a divorce in which the respondent (the spouse being served) does not respond i.e. he/she does not sign and file the ‘response to dissolution of marriage’ paperwork. The respondent has 30 days to ‘respond’ and once the 30 days is up, the petitioner can enter a default.
A ‘default divorce’ can be a good thing as it finalizes the divorce relatively quickly and cheaply. If there are no issues, a default divorce is usually finalized within the 6 month & 1 day time frame (from the date of service) and most often without a court appearance. When there are issues, a default hearing is scheduled for only the petitioner (the respondent is not invited), a lawyer is usually not needed and the judge makes a ruling based on only the petitioner’s testimony.
Default divorces are very common in California. It is one way that divorces are finalized when the respondent does not wish to agree or dispute. If the petitioner goes to court, he/she does not require an attorney because the opposing party is not in the courtroom.
However, if the non-cooperative spouse decides to respond when served, then the divorce is contested. Most contested divorces end in a trial–but not all. Even if the spouse responds, an agreement on issues can still be made. This would involve a ‘stipulated judgment’ which is simply an agreement that is prepared after the spouse responds. It’s a good idea to have the Attorney prepare this to assure that all issues are addressed and that a court appearance is avoided.
There are times when a respondent ‘responds’ when there is no need i.e. there are no issues to address. When this happens, a short agreement can be prepared and filed with the final paperwork so that the divorce can be finalized without a trial.