In most cases, divorce isn’t something that happens without warning. It’s often preceded by lengthy discussions, long periods of not getting along, or separation. Many divorces end because of infidelity, ongoing conflict, substance abuse, or domestic violence.
Regardless of the reason (or reasons) for divorce, both spouses have the legal right to know if their marriage is ending. Either person can legally decide they don’t want to be married anymore, but both individuals are entitled to participate in the proceedings and state their case.
That said, it’s not unheard of to try to get a divorce without the other person’s knowledge or consent. In many ways, it may even seem easier to do this rather than face the other person. But while it can be done, ending a marriage in this way is neither simple nor quick.
Filing for Divorce
There are several types of divorce, but two of the most common ones are contested and uncontested divorce.
In short, a contested divorce occurs when the spouses are unable to come to a mutual agreement. They are usually time-consuming, stressful, and financially demanding. Typically, they involve mandatory settlement negotiations, court hearings, and, in some cases, a final trial.
An uncontested divorce, on the other hand, is typically less stressful. Marital matters such as child support and the division of assets are usually resolved before filing, which streamlines the entire process and makes it less taxing on both parties. Many uncontested divorces are also no-fault, meaning both partners agree to the divorce due to incompatibility or irreconcilable differences.
Unfortunately, not all marriages can be dissolved so amicably, even when there are clear grounds for the split. Even the most civilized divorces can be lengthy and challenging to both parties. Worse still, it can be difficult to keep grounded during the process. Sometimes, one spouse may refuse to cooperate or disappear altogether. When that happens, it may be necessary to go ahead without their consent.
How to Get a Divorce Without a Spouse’s Consent or Knowledge
Getting a divorce without the other person’s consent is extremely tricky. Those who try often don’t succeed as a result. But doing so without informing the other person at all is nearly impossible.
Divorce Without Spouse’s Consent
Depending on the state of residency, spouses may be required to be separated for at least one year before filing for divorce. However, in Alabama and many other states, you can still live together and technically get divorced since there is no such requirement. It varies greatly depending on the jurisdiction you are filing in. In most jurisdictions, one thing is common: one person (the Plaintiff) will file for divorce and serve their spouse (the Defendant) the papers.
These papers include a complaint and summons, which initiate the divorce, specify the terms, and include their reasons. They also indicate the division of assets (ex. property), custody, spousal support, and so forth. Keep in mind that you are the one responsible for filing, not the court. Some states require the papers to be served in person, while others allow them to be delivered via mail, publication, or another person serving on your behalf.
Once served, the Defendant has thirty days to respond, or the case moves to a default judgment, which happens when one party doesn’t comply with a court-ordered action. If this happens, the Plaintiff can submit their requests for assets and custody without their spouse interfering. Depending on the requests, they may either be granted or not. Either way, there is a waiting period for a court hearing date. If a settlement has been reached, usually with the help of family law or divorce attorney, the divorce is granted.
If you are unable to serve the divorce papers at all, you must practice due diligence before the process can continue. This means doing whatever you can to exhaust all means of contact. This includes:
- Trying to contact them via phone, email, or social media.
- Reaching out to relatives or mutual friends to get in touch.
- Hiring a private investigator to search for them.
Once all means of contact have been tried without success, the court may require a public declaration to be made. This is a way of notifying the missing party of the divorce petition. Oftentimes, the public declaration is published in a local newspaper where it could stay for weeks or even longer. If there is still no response after the allotted time, the court may grant the divorce.
Divorce Without Spouse’s Knowledge
A divorce can only be granted without the other person’s knowledge if the one seeking the divorce has done everything in their power to contact their spouse and has been unable to do so. This is sometimes called a default divorce and is not the best result since the other spouse can come in later when they actually do find out and possibly cause issues.
Consequences of Not Signing Divorce Papers
Failure to sign the divorce agreement or other paperwork will drag out the divorce proceedings, increasing attorney costs. Not only that, but not signing them could negatively impact the Defendant’s right to spousal support, shared custody of any children, retirement benefits, and the overall division of marital assets.
Ultimately, the judge will eventually resolve a contested divorce if the parties cannot sign the appropriate paperwork and reach an agreement. That’s why it’s in Defendant’s best interests to negotiate and sign an agreement if there is really no material matter being contested. By doing so, they will have an equal opportunity to make their case and try to settle on a fair agreement.
In normal circumstances, a divorce cannot be granted without both parties knowing about it. Ending a marriage without the other person’s knowledge or consent requires jumping through multiple hoops. Because of this, it should be considered only as a last resort.
If you or your partner are seeking a divorce, start by getting a family law attorney to represent you and protect your legal rights. Further, if you suspect your spouse is trying to divorce you without your knowledge, you may need an experienced Tuscaloosa divorce attorney (or a divorce lawyer wherever you reside) to walk you through the process and act in your best interests to ensure the marriage ends with the best result possible.
Ultimately, no matter how challenging it may seem from the onset, it’s best to follow the proper channels when filing for divorce.
About The Author
Steven Harris is a family law & divorce attorney in Huntsville, Alabama. He lives with his lovely wife of fifteen years and regularly writes informative articles online about domestic relations law and other related topics.