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Divorce Attorney FAQs: What Happens if One Spouse Doesn’t Want a Divorce?

Sep 8, 2021 | Divorce

You’ve decided that it’s time to move on, but your spouse has not! This is an issue that divorce attorneys see every day, but it is not an insurmountable problem. The divorce process can sometimes become contentious, which is why you need a qualified attorney in your corner. If you are seeking legal support to end your marriage and live in the Sugar Land, TX or Houston, TX area, our firm can be of service.

When One Spouse Refuses to Acknowledge the End of a Marriage

Divorce is difficult enough when both parties are relatively cooperative, but if there is one spouse who wishes to avoid the divorce, the process could potentially stretch out much longer than necessary. The spouse might be resisting divorce for financial, child custody, or emotional reasons, but whatever the case may be, this situation can add tremendous stress to an already difficult process.

Living in a No-Fault Divorce State

If you are the party wishing to divorce, then be glad that you live in Texas. Texas is a “no-fault” divorce state, which means you don’t need the cooperation of your spouse to finalize a divorce. With the help of a divorce attorney, the divorce can be processed even if your spouse completely refuses to take part in the process. In fact, sometimes a divorce where one party refuses to participate ends up being the most straightforward divorce of all (more on that later).

Failure to Answer a Divorce Petition

When one party receives a divorce petition, they are given a deadline to file an answer. If they don’t answer by this deadline they are considered to be “in default.” At this point, the spouse who is filing for divorce can ask the court for a default judgment. Unless the other party intervenes within a certain timeframe, a default judgment can allow the petitioner to set many of the terms and conditions of the divorce, with final approval from the judge.

What Is a Default Divorce?

When one spouse refuses to answer a divorce petition or fails to appear in court, this is where a default divorce comes into play. Your spouse only has a certain amount of time to respond, and once this time is up you can ask a judge for a default judgment. However, it must be noted that you have to make every reasonable effort to get a response from your spouse.

How Default Judgments Work

Assuming that you and your attorney have made reasonable efforts to seek a response from the other party, and this spouse has ignored the divorce papers for whatever reason, you may proceed with requesting a default judgment from the court. As the petitioner who is seeking a default judgment to finalize the divorce, you must follow some steps and rules to finally get closure on this process.

After submitting the default judgment request, including an affidavit that confirms you have in fact tried to get a response from your spouse, you will also be required to submit some additional paperwork. This could include requests for child or spousal support, terms on child custody, or your wishes on asset division. Your attorney can advise you as to exactly what paperwork and forms need to be filed at this point.

The Waiting Period

Under Texas law, the petitioner must wait 60 days from the date that the original petition was filed before the divorce can be considered final. This waiting period includes holidays and weekends. Yes, the other spouse may present themselves at any point during these 60 days to answer the divorce petition and challenge any of the terms you and your attorney have set out in the default divorce request.

When Is a Default Divorce Final?

Where a default divorce can get tricky is when the other party ends up filing an answer within the 60-day waiting period. This can be unexpected for the party who filed and may complicate matters to some degree. A default divorce cannot take place if the other spouse files an answer at any point before the divorce hearing begins.

Sometimes unforeseen turns of events such as this can take place during the divorce process, which is why it’s important to have expert legal support on your side. While a default divorce can often allow for a relatively quick and painless end to a marriage, sometimes the best-laid plans don’t work out as anticipated.

What If You Are the Spouse Who Doesn’t Want a Divorce?

Whatever your reason may be for not responding to a default judgment notice, you must understand that it is never in your best interest to not participate in divorce proceedings. The spouse who obtained the default will likely receive everything requested in the divorce petition, from full child custody to major marital assets unless you and an attorney intervene as soon as possible.

If the divorce process has gotten to this stage, it is definitely not recommended that you try to dig yourself out of this predicament on your own. You will need an attorney who specializes in Texas divorce law to help ensure that you get your fair share in the divorce settlement.

Options for a Spouse Who Can’t Let Go

Being in a situation where you want to remain married but your spouse does not can be incredibly painful. Unfortunately, there is no legal recourse for a person in this situation, no matter how unfairly you feel you are being treated. The only option is to accept that the marriage is over and seek the best legal counsel possible so that you are treated fairly in the divorce settlement.

Finding a Qualified Divorce Attorney Near Sugar Land, TX or Houston, TX

No matter what path you are taking on your divorce journey, finding a legal expert who can help you through this process is strongly advised. Even with a relatively straightforward default divorce, there is still a great deal of paperwork and logistics involved, not to mention the fact that your spouse could choose to respond at any moment within the 60-day waiting period.

Having an attorney in your corner (particularly one who is familiar with Texas divorce law) is a tremendous resource for legal advice and technical support. An attorney can make sure that no mistakes are made during the filing process. Any errors found in critical documentation can delay your divorce being finalized, which in turn gives your spouse more opportunity to file an answer or change their mind about the terms and conditions of the divorce.

Can Mediation Be Helpful?

When one or both spouses are being uncooperative, bringing in an independent third-party attorney to help mediate and settle any disputes involving children or asset division can make a lot of sense. The idea here is to help both parties come to an agreement on a middle ground, and hopefully hasten the divorce finalization when there is one spouse who may be trying to delay the process.

The goal of mediation is to come up with a Mediation Settlement Agreement, which is a legally binding document. A spouse who signs this document cannot later change their mind about the terms laid out in this agreement.

If you are in a situation where you and your spouse cannot agree on getting a divorce, contact us today at the Skillern Firm. Family Law is all we do, and we can help you through this very difficult process. We serve clients in the Sugar Land, TX and Houston, TX areas.