When your spouse does not respond to the divorce papers he has been served, it does not mean the divorce will happen. A spouse's failure to respond means that you could ask for a divorce by default. To ensure a successful divorce by default, you must follow specific procedures, the details of which vary slightly from state to state.
Reasons for Getting a Divorce by Default
There are several reasons you might want to get a divorce by default. If you think that it is unlikely your spouse will sign divorce papers or have objections to the divorce, you might want to file for default divorce. You can also file for this type of divorce if you have difficulties contacting your spouse. Divorce by default is also a procedure employed by divorcing couples who agree on all terms of their separation and find this the easiest route to take.
Filing for Divorce
Procedures for obtaining a divorce by default start with filing a petition for divorce with the local clerk of the court. The petition for divorce has to include specific elements, including the names of the parties and their residency, the date and place of marriage, whether there are children, what property is to be divided and the fact there are irreconcilable differences between the parties. When children are involved, a parenting plan and child support issues must be addressed.
After filing the petition, you will receive a summons and other legal documents for property and children, if necessary. You must serve these documents to the other party. To get a divorce by default, you need to prove that your spouse has received the papers and is not willing to respond; thus, you need a signature to confirm acceptance. You can serve the papers yourself, but if your spouse will not voluntarily accept them, another adult person can do it, provided they complete an Affidavit of Service.
Your spouse likely has up to 30 days to respond to the divorce papers after being served, depending on the jurisdiction. After the prescribed time period has passed, you can ask for a divorce by default. You must ask for a default hearing and submit proof your spouse has been served with divorce papers. In some cases, the judge might want to wait up to three months before granting you a divorce, in case the other party decides to respond.
Disadvantages of Divorce by Default
Getting a divorce by default may not be a good option in some cases. If you need child support and cannot prove the real income of your spouse, you may want to get the other party in court. Additionally, if you reach an agreement before the divorce, your spouse will be more willing to accept it than follow the instructions of a court order.