During divorce, it is all too common to have questions that you need answering. Our…
Getting a divorce is never easy and when one spouse won't cooperate or consent, it can complicate things further. If you're seeking a divorce without your spouse's consent, you should know that you can move forward with divorce proceedings in all 50 states.
While it takes the consent of both parties to enter into marriage, it only takes the consent of one party to end the marriage. In the past, it was true that both spouses had to agree to divorce, but all 50 states have enacted laws that allow one partner to initiate divorce. In the state of North Carolina, the other spouse cannot refuse the divorce.
Divorcing without your spouse’s consent can be complex and raises a lot of questions. What kind of divorce can you file for without consent? When should you file for divorce without your spouse’s consent? Can your spouse delay proceedings? As a Raleigh divorce law firm, we’re here to answer these questions and guide you through the process.
Do Both Spouses Have to Agree to Divorce?
In North Carolina, your spouse does not have to agree to the divorce for it to proceed. As long as you meet the eligibility requirements, you can initiate the divorce process without your spouse's consent. If you decide to file for divorce, your spouse is not obligated to complete or sign any paperwork, file any documents with the court, or attend the divorce hearing. However, it is essential to ensure that your spouse receives proper legal notice of the divorce case that you file. Providing them with appropriate notice ensures that they are informed about the proceedings and have an opportunity to respond if necessary.
Reasons People Divorce Without Their Spouse’s Consent
Most people that file for divorce without a spouse's consent do so because of one of the following issues:
- The spouse’s whereabouts are unknown
- They are afraid for their safety
- They no longer communicate with their spouse
- They don’t want to discuss the divorce and want things to move quickly
With these situations in mind, it's easy to see why someone might seek divorce without their spouse's consent.
What Kind of Divorce Should You File For?
There are several types of divorce, but let's dig into some of the options for when your spouse is likely not to consent.
A no-fault divorce is a top choice for divorce in which you don't expect the other person to sign. A no-fault divorce means that neither party has been blamed or is burdened with proving the actions that led to the breakdown of the marriage. While other types of divorce can be contested, a no-fault divorce typically isn’t disputed since no blame has been placed. This makes proceedings smoother when one spouse hasn’t consented to the divorce since they have no grounds to refute the filing.
In North Carolina, an uncontested divorce offers a viable option for individuals seeking to end their marriage without requiring a signature from their spouse. An uncontested divorce occurs when both parties agree to the terms of the divorce, including matters such as child custody, division of property, and spousal support, if applicable. This type of divorce is typically faster and less expensive compared to a contested divorce that involves courtroom battles and negotiations.
In an uncontested divorce, the couple can draft a separation agreement outlining their mutually agreed-upon terms, which is then submitted to the court. If the court approves the agreement, the divorce can be finalized without the need for the spouse's signature, providing a smoother and more amicable process for both parties involved.
Can a Spouse Delay Divorce Proceedings by Being Uncooperative?
There's a common belief that a spouse can prevent the divorce from proceeding by refusing to be served divorce papers or by simply not signing the papers. While this can certainly delay proceedings, it won’t prevent the divorce from happening.
When a sheriff or registered process server serves divorce papers, your soon-to-be ex spouse cannot refuse them and they will be considered served. They will then have 30 days to answer the petition, although their answer cannot prevent the divorce from proceeding. If they do not answer, the divorce will proceed with your custody and property division requests.
If you’re seeking a divorce without your spouse’s consent because you don’t know where your spouse is, you must prove that you have made a concentrated effort to find them before the judge will allow proceedings to continue.
How to File for Divorce Without Your Spouse’s Consent
Like all divorces in the state of North Carolina, you and your spouse must be separated for one year before filing for divorce. The state defines “separated” as living separately with no intent to reconcile. In addition, at least one member of the couple must also have lived in North Carolina for at least 6 months before filing for divorce.
While it's advisable to contact a divorce attorney during any divorce, is especially important when divorcing without your spouse's consent. Issues of property division, custody, and alimony are more complex when the other party doesn't comply.
Once you have contacted a divorce lawyer, the process will be as follows:
- You will file for a no-fault divorce.
- Your soon-to-be ex-spouse will be served a petition for divorce, a summons, and other paperwork which, again, they cannot refuse.
- After the papers have been served, your spouse will have 30 days to answer the complaint. If they don't respond, your case will move into default judgment. If your divorce goes into default judgment, you will have to opportunity to submit your custody and property division requests. As long as they are reasonable, they may be granted. Your spouse will have no recourse later since they did not respond in the allotted time frame.
- Whether your spouse has answered the agreement or not, your case will then go into a waiting period while you work on your separation agreement and await your court hearing date.
- At your hearing date, if you have reached a settlement of the judge deems fair, your divorce will be granted. If the judge does not deem your settlement equitable or your divorce is contested, hearings will continue until these issues are resolved.
Contact Trusted Raleigh Divorce Attorneys Before Filing
Divorce is difficult, but you don’t have to go through it alone. At Doyle Law Group, we’ve guided countless people through the divorce process. From the initial filing to separation agreements, we help reduce stress so you can focus on healing. To schedule your consultation, call (919) 301-8843 or fill out our online contact form below.