In some cases, both spouses recognize that a marriage isn’t working and decide together that a divorce is the best option forward. However, in most instances, one spouse instigates the divorce. Even in situations where a marriage has been “on the rocks” for months or years, the other spouse may feel shocked and blindsided by a divorce request. If you are the one asking for a divorce, be ready to face surprise, frustration, anger, or sadness from your spouse (possibly all of the above). Eventually, most spouses come around and acknowledge the inevitable, but what happens if your spouse refuses to accept your divorce request? What do you do about a spouse who doesn’t want to get divorced?
Your Right to Get Divorced
First and foremost, know that you absolutely have the right to get divorced. Your spouse may not want to accept what’s happening, but they cannot stop you from legally requesting and receiving a divorce. They can, however, dramatically slow the process, greatly increase the cost, and turn it into a frustrating and emotionally draining experience for you both.
If you worry that your spouse will fight your divorce request, there are two ways to tackle the problem. Start with offering understanding and support. If that doesn’t work, then you’ll need to use the courts to help you end your marriage.
The Carrot – Talk to Your Spouse
If you are instigating the divorce, chances are you’ve weighed your decision for months or years, talked it over with friends, and maybe even discussed it with a therapist. By the time you’re ready to ask for a divorce, you’ve come to terms with the decision and all its implications.
As for your spouse, not so much. Even if your marriage is struggling, your spouse may still be surprised by your divorce request. This can easily lead to your spouse feeling angry and/or defensive, especially if you try to charge forward, throwing legal paperwork at them.
Give your spouse time and space to absorb this huge, life-changing news you’ve delivered. If possible, sit down and talk. Explain to your spouse why you want the divorce and why it is the best decision for you. Then, listen. Let your spouse explain their concerns, fears, and uncertainties.
Try to be generous, honest, and understanding toward your spouse. Though you may disagree on certain things about your marriage, try to empathize with their point of view.
Just being understanding can make a world of difference and set a positive, mutually respectful tone for your divorce. If your spouse feels that you are listening, they may come around to accepting your decision to get a divorce. In an ideal world, this positive beginning will set the stage for an uncontested divorce where you and your spouse can use mediation or a collaborative divorce process to address dividing your property, determining custody, and agreeing to child support and/or spousal support arrangements.
(Resources: How to Choose a Divorce Mediator)
The Stick – Using the Courts
Even if you try to be reasonable and understanding when you request a divorce, not every spouse will respond favorably. If your spouse refuses to grant you a divorce, then you’re going to have to take a longer, harder road. Ultimately, however, you will be successful.
Determine Your Grounds for Divorce
Your first step in initiating the divorce process is to decide what grounds you want to use for divorce. You can choose from a number of specific reasons, including cheating, mental incapacity at the time of marriage, mental or physical abuse, drug or alcohol addiction, mental illness, etc.
However, you don’t actually need a specific reason for divorce. Every state allows you to request a “no-fault” divorce. If you suspect that your spouse will make things difficult, you may want to consider filing for a no-fault divorce. If you choose different grounds (for example: that your spouse is has mental-health issues), your spouse can contest that grounds in court. You’ll be forced to prove that the grounds exist. If you fail, a judge won’t grant your divorce, and you’ll have to start the process all over again.
Send the Paperwork
You will need to ensure that your spouse receives your petition for divorce so that they have the opportunity to review it and either sign it or file a response in court. Spouses who don’t want to get divorced can say they never received the paperwork. That means you may need to send documents by certified mail or even have the documents served to your spouse by a professional process server.
Give Your Spouse Time
Each state allows your spouse a certain amount of time to respond to your petition for divorce (usually 30 days). Make sure you wait the appropriate amount of time after your spouse receives the petition.
Ask for a Default Judgement
It isn’t uncommon for stubborn spouses to just refuse to sign the divorce paperwork or to not show up to court. While this can certainly be frustrating for you, it isn’t the end of the road. If your spouse doesn’t respond to your petition for divorce within the legal time requirements, you can request a default judgment from the court. You will likely have to file a request for default and then appear in court. At court, you’ll need to prove your grounds for divorce if you didn’t choose a no-fault divorce and then show that you’ve followed all legal protocols.
As long as you’ve followed the law, the judge will likely grant the divorce.
Making the Divorce Painful
A spouse who refuses to sign a petition for divorce is bad, but that isn’t the worst-case scenario. If your spouse really doesn’t want a divorce, they can try to make the process as painful and expensive as possible. The easiest way to do that is to file a response to your petition for divorce in court, which will necessitate a trial. Your spouse can choose to fight every aspect of your divorce in court, from the division of your property, to child custody, child support, and even who gets the pets.
Your spouse can make things even harder by withholding paperwork you need (like copies of property deeds or pay stubs) and challenging all your claims.
It’s always a good idea to make as many preparations as possible before you request your divorce. That may mean opening separate checking, savings, and credit card accounts in your name, and collecting any paperwork you need before your spouse thinks to hide them.
(Resources: The Second Saturday Divorce Document Checklist)
At the end of the day, no matter how much your spouse resists it, you will be able to get your divorce. Make your preparations, use the carrot first, but always be ready to use the stick if necessary.
Want more advice on how to prepare for a divorce? Join us for the next Second Saturday Divorce Workshop in your area.