During divorce, it is all too common to have questions that you need answering. Our…
Frequently Asked Questions About Filing for Divorce Without Your Spouse’s Consent
Reasons People Divorce Without Their Spouse’s ConsentMost 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
What Kind of Divorce Should You File For?There are several types of divorce, but when filing without your spouse's consent, it's best to file for a no-fault divorce. 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.
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 ConsentLike 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.