Divorce by Default Explained

When a couple gets married, it may not be an easy undertaking.  There is a ceremony and reception to plan, people to be invited, vendors to hire, and of course, a set of rings to choose (along with a couple of snappy ensembles).  But at least when you get to the altar there are two people engaged in the same course of action: they both want to say “I do”.  While some couples do decide mutually (and sometimes even amicably) to divorce, it is more often the case that one person wants to be rid of the commitment more than the other.  And this can cause an awful lot of holdups in the process.  So if you are one side of a couple involved in a divorce and the other person (your soon-to-be-ex spouse) refuses to participate, then the proceedings become a default divorce.  Here’s how you can work it out.

You’re going to start by filing a Petition (or Complaint, depending on the state of residence) for Divorce.  In most cases, this includes not only the pertinent marital information; your name and that of your spouse, when and where you married, addresses for both parties (if separated), the names of any minor children, and possibly the reason for divorce; it may also include what you hope to gain in the divorce settlement, including division of assets (and debt), custody of minor children, and whether or not you will change your name.  Generally, you would then get a summons to give to your spouse.  But if the other party avoids you or refuses to accept the divorce papers, you must get someone else to serve them (and give you a notarized Affidavit of Service).

Once your spouse has been served (either by you or someone else) he/she has a set amount of time to respond to the court in writing to acknowledge the service and dispute any claims to property, custody, and so on.  If your spouse fails to do so, then you may request that a default hearing be scheduled to move the divorce proceedings forward with or without your spouse.  Then all you have to do is show up to the scheduled hearing with all the correct paperwork in hand.  At any time leading up to (and during) the hearing, your spouse may choose to make an appearance, although he/she will probably have to explain why prompt and proper procedure wasn’t followed.  But either way you are bound to have the upper hand.

Of course, if your spouse does make an appearance you’re likely to face an uphill battle (since cooperation doesn’t seem to be an option).  And unless you have an iron-clad prenup in hand you’ll need to make sure that you have absolutely everything in order to present to the judge at the time of the hearing.  But as long as you have a good lawyer on your side you can be certain that the judge will be made aware of the situation (which clearly favors you).  You may not want to make your spouse look bad, but you don’t really have to if he/she does it for you.