What can you do if you have decided to file for divorce, but your spouse has told you that they will not sign any divorce papers? Can you still get divorced? The simple answer is yes. Read on to learn what your legal options are and what steps you should take when dealing with a spouse who does not want a divorce.
- Can I Still Get Divorced if My Spouse Does Not Want to Get Divorced?
This is a question our attorneys often are asked by clients. In Texas, if one spouse wants to get divorced, the other spouse cannot prevent the divorce from going forward. While it is unfortunate that one spouse feels that the relationship should not end, they cannot prevent their spouse from seeking a divorce. Even if your spouse has told you that they will not sign any divorce papers, they cannot prevent the court from granting you a divorce; there are ways to proceed in the divorce case with an unwilling spouse. In our modern age, it would be very unnerving if one spouse could force the other spouse to remain married.
- What if My Spouse Avoids Service?
After you decide to begin the divorce process, you (or your attorney) must file an Original Petition for Divorce with the court. After filing, your spouse must be personally served with a copy of the Original Petition for Divorce and a citation that orders them to appear before the court. These documents are what people typically think of when they refer to “divorce papers.” Personal service means that your spouse must be physically touched by the papers. If your spouse knows that you have filed for divorce but has told you that they will not accept or sign any divorce papers, they might be avoiding service. Your spouse must be served with divorce papers for the divorce to proceed, but the process server (the person serving the divorce papers to your spouse) can attempt to serve many times and can serve at any place your spouse might be found, including work or home.
If it becomes clear that your spouse is intentionally avoiding personal service, your attorney can file a motion for alternate service with the court in order to try to serve your spouse by a method other than personal service. What are alternate methods of service? The court could greenlight a number of methods. These include: service by email, service by certified mail return receipt requested, service by publication (publishing notice of the lawsuit to the respondent in the newspaper for a certain amount of time), or even service by posting on social media platforms. While it might require some additional steps, there a number of ways to ensure your spouse is served with divorce papers.
- What if My Spouse Refuses to Participate in the Divorce Process?
If you have been able to serve your spouse with divorce papers, but they refuse to participate further in the divorce process, you can still proceed in the case without them. In what ways might your spouse refuse to participate in the divorce process?
Your spouse might not file an answer in the divorce case. An answer is how the party served (your spouse) enters their appearance in the lawsuit. Your spouse might think that if they do not file an answer, the case cannot proceed. This is untrue; if your spouse refuses to or fails to file an answer in the time allotted, you can seek a default. A default refers to a situation where you win the case by default — if your spouse refuses to participate in the case, then the court will only hear your side of the story, consider the evidence that you, put before the court, and can grant you a divorce without ever hearing from your spouse.
Your spouse might file an answer but refuse to agree to mediate. Mediation is the process in which a neutral third party (commonly a family lawyer or former family court judge) helps the parties to a divorce action reach a settlement and avoid the need to attend a hearing or trial in court. Many Texas family courts require that the parties mediate before attending a hearing or trial before the court. If your spouse refuses to communicate with your lawyer regarding finding a time and date to mediate, then your attorney can file a motion for mediation with the court. This motion asks the court to order you and your spouse to mediation. The court would likely select the mediator for you and order you to mediate by a specific date. Then, your spouse would be subject to a court order to mediate and could be punished for failing to agree to a time and date to mediate or for failing to appear for the mediation.
Your spouse might refuse to provide you with any documents in the case. In many divorce cases, the parties participate in the discovery process. During discovery, the parties send each other requests for information and documents to learn more about the case. For example, your attorney might request your spouse provide their bank statements for any bank account that your spouse has had for the last five years. If your spouse refuses to provide any documents which are responsive to that request, your attorney can send your spouse a discovery deficiency letter. This kind of letter describes specifically what documents or information was requested and in what way your spouse’s response was deficient or lacking. The letter will give your spouse another chance to provide the documents to you by a certain date. If your spouse fails or refuses to do so, then your attorney can file a motion to compel discovery with the court. This motion asks the court to make (or compel) your spouse to provide the requested documents.
- What if We Came to An Agreement, But My Spouse Refuses to Sign the Final Papers?
If you attended mediation, and you and your spouse (and your attorneys, if you had attorneys) signed a mediated settlement agreement, but your spouse now regrets making the agreement, you can still proceed with the divorce over your spouse’s objection. When both parties sign a mediated settlement agreement and that agreement meets other specific requirements under the Texas Family Code, each party is entitled to judgment. This means that the mediated settlement agreement is binding and irrevocable — one spouse alone cannot change their mind about the details of the agreement nor prevent the other spouse from presenting the agreement to the court. So long as the mediated settlement agreement meets the specific requirements under the Texas Family Code, the court does not have the ability to refuse to enter judgment on the agreement. This means that the court must enter judgment on the agreement that you and your spouse signed in mediation. The agreement you made becomes the basis for the court’s judgment and your spouse’s objection does not prevent you from moving forward in the divorce process.
Or, if you and your spouse signed a mediated settlement agreement and your attorney drafted the agreed final decree of divorce based on that agreement, you can still proceed in the case if your spouse refuses to sign the agreed final decree of divorce. Your attorney would file a motion to enter the agreed final decree of divorce. This motion shows the court that you and your spouse signed a binding and irrevocable mediated settlement agreement, your attorney drafted the agreed final decree of divorce based on that agreement, but your spouse refuses to sign the document. The motion will also ask the court to enter judgment on the agreed final decree of divorce despite the fact that your spouse refuses to sign. Remember, if you and your spouse signed a mediated settlement agreement, you are entitled to have the court enter judgment on the agreement you made. The court will grant the motion to enter the final decree of divorce and grant you a divorce along with all of the agreements you made in your mediated settlement agreement.
It can be frustrating to deal with a spouse who refuses to accept that a divorce will be granted in your case. Luckily, there are a number of legal avenues you can pursue to ensure that your spouse does not hinder your divorce suit. To learn more about your legal options in this situation, consult with one of Hunt Law Firm’s attorneys today.