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Refusal to sign divorce papers

Refusal to sign divorce papers does not mean a spouse is "stuck" in the marriage. Instead, refusing to sign means the divorce goes to trial.

Refusal to sign divorce papers overview

Whether you decided to get an online divorce or your separation process went in a different direction, there are many reasons why a spouse may refuse to sign divorce papers: he or she is confused about what to do with the documents, is hesitant to go along with ending the marriage, is disinterested, or simply just wants to make you angry.

Regardless of the reasons, there is one important thing to note: your spouse cannot legally prevent you from filing for divorce, whether the papers are signed or unsigned.

Separation agreement

Most divorces start with a separation agreement that spells out things such as who lives where, who pays the bills, or who gets the kids when.

However, separation agreements are generally not something a court grants. You can draw one up (by yourself or with a divorce attorney’s counsel), but if your spouse won’t sign it, there is little you can do.

Like a business contract that is signed by only one party, it’s pretty much meaningless unless you both agree to it.

Getting served

Irrespective of a separation agreement, if you decide to file for divorce, the law requires that your spouse be “served” or notified about the divorce and its proceedings.

Generally, papers are served either through a legal processor or through certified mail within 120 days of filing for the divorce; your spouse then typically has 30 days to respond. If your spouse is dodging the processors, refusing to sign for certified mail, giving you a phony address, etc., you can go to court and ask for more time or request that you be allowed to post your intent to divorce in a legal notice placed in a local paper. Publishing the notice satisfies your requirement of notifying your spouse—whether he or she sees the ad or not.

Be aware, though, that your spouse is under no legal obligation to respond to the divorce notice. While it will behoove him or her to respond so any concerns and demands can be addressed, not signing the paperwork just means your spouse’s side is never presented in court. And the divorce may drag on.

Fault vs. no-fault divorce

All 50 states now allow a person to file for divorce using the no-fault catchall. Instead of itemizing why the marriage is ending and assigning blame (e.g., infidelity, cruelty, etc.), a court will allow you to file for divorce without cause—or, a “no-fault” divorce. Because there is no finger-pointing, a reluctant spouse may be more likely to go along with a no-fault divorce knowing his/her reputation will not be damaged. Consult a lawyer to see if this is a good option for you.

Default judgment

Let’s say you’ve done everything right: you filed properly, gave your spouse notice, waited the requisite amount of time for a response, showed up for all court proceedings and generally followed the letter of the law. But your spouse is still not cooperating—now what? Ask your attorney about entering into a default proceeding.

As the name implies, a default divorce is kind of like a forfeiture: your spouse didn’t show up or play by the rules, so now the judge is forced to rule in your favor. Essentially, a default divorce is a divorce based on the filing spouse’s terms. Things like division of property, child support, and custody arrangements spelled out by the filing spouse will generally be upheld by the court. The court will assume that if your spouse had any issues with the papers, he or she would have made them known.

Abandonment

Lastly, if your spouse is simply nowhere to be found—for example, no forwarding address has been left, his or her place of employment is unknown, the family hasn’t heard from him or her, etc., it is possible to file for divorce using the reason of abandonment. In this case the court will grant you a divorce without a hearing (or the signing of paperwork), but you will have to endure a 6-month waiting period and make more attempts to find your spouse. But in the end, even if you don’t find your spouse, you can still get divorced.

Bryan Scott Brinyark | Apr 11, 2014

FIRST AID for DIVORCES

1. Check for Vitals Just like with a medical emergency, you need to know what yo uare dealing with when a friend or family member ask you about divorce. ***Where are they? Have they done counseling? Have they already dicussed divorce with their spouse or are they just needing information? ***Make sure they are breathing. Encourage them to take a deep breath and think about what they are about to do. ***Is there still a hearbeat? Help them determine if the marriage is still alive...at all. ***Grass is rarely greener. Encourage them to make sure they know what they are doing. Divorces can occur fairly quickly. Don't want to rush and regret. "If you think they are bad now...just divorce them." 2. Stablize *** Talk them off the ledge. Divorces are very emotional. Calm heads prevail. *** Make sure they are not talking about doing anything rash: Suicide, Homicide, Kidanpping the children, Destroying property, Assauilting the paramour, Selling property of spouse. These really happen. It's not abnormal for them to think about doing these...DON'T let them actually do them! 3. Immobilize ***Don't let them move out of the house UNLESS there has been violence or a threat of violence. Moving out causes unnessaary expense doubling the costs of living at a time when money is an issue. Also, when a party moves out, the court will have to determine temporary custody, visitation, and child support. Plus, remaining in the same home promotes SETTLEMENT. If the parties remain in the home together, there is increased discomfort. They are more likely to talk and to get the case settled. 4. Get them to a Professional asap! ***Once it is clear they are headed for divorce, help them find a divorce attorney. ***They may also need Couselors, accountants, private investigators and/or financial planners. ***Timing is important. It is best to get evidence of cheating spouse prior to filing. ***They need information to make decisions. An attorney can file Interrogatories, Request for Production, Subpoeans, Request for Admissions and take Depositions. They can also advise about the need for a Business Valuation or Home Appraisal. Apply Pressure ***Key to getting the case settled is finding the other side's PRESSURE POINTS. ***GUILT- some spouses will settle for far less that what the Judge would give them if they feel guilty after getting caught. ***PRIDE - similar to guilt but if the party considers themselves to be a pillar of the community, they will often settle for less to avoid the exposure. ***MONEY - the threat of losing it or continuing to have litigation costs can really be effective to drive settlement. ***FEAR - Peace of Mind has Value. Divorce litigation is emotionally taxing. Fear of the unknown. Fear of losing the children. Fear of exposure. ***TIME - the most patient win. You must be able to outlast the other party. Surgery ***Even though the vast majority of cases settle, there are those that require a Judge to operate. Trials only occur if the parties have a very different opinion of what the Judge will do. Usually involves lost of money or children. ***Don't expect the case to over on the date of trial. Many cases take several days to conclude. Then the judges usually will wait several days or weeks to issue the final order. ***Expect Post-Judgement Motions. After the judge rules, one or both sides will not agree and may ask the judge to reconsider or to amend. This process can take 4 months or longer. ***Appeals are not uncommon. Some see it as another chance to settle on better terms. Can take a year or more on appeal. Recovery Many experts say that divorce is similar to the death of a spouse. Clients usually need a year to establish a new life after the divorce. They need to go through the holidays and establish new "traditions" without the spouse. ***After the divorce, each party needs to make sure they change deeds, titles, account names, beneficiaries, wills, powers of attorney, etc.

Kristen Prata Browde | Apr 13, 2010

The Contested Divorce Process

Initial filing A contested divorce is one in which at least one issue is unresolved on the date of the first divorce filing. In New York, that first filing can take one of two forms, either a Summons with Notice or a Summons and Complaint. Either form is designed to do two things: 1) Give the other party notice that their spouse is seeking a divorce, and 2) Formally end what's known as the marital period, that is, the period during which the marriage is viewed as a continuing economic partnership. After the filing of the first papers (in either form), the party who filed has a period of time (in New York, 120 days) to have the papers formally served on their spouse. Each state has its own rules on service and there are special rules for service overseas. Service of process Service of process must be followed by the filing of proof of service (in New York, in the form of an Affidavit of Service must be properly filed within 30 days of the service). This affidavit tells the Court that the other side has been given formal notice and is properly under the jurisdiction of the Court. If there's a good reason that service cannot be accomplished within 120 days, the filing party may return to the Court to request either more time or permission to use alternative means of service, such as service by publication. Response Depending upon which form is used, Summons with Notice or Summons and Complaint, the form of the response will be different - but in either case the response must be made within a specific number of days of service of the documents. In New York, that's either 20 or 30 days, depending upon the method and place of service. If Summons with Notice was used, the form of response is a Notice of Appearance, usually with a Demand for a Complaint. If that Demand is served, the Complaint must be served by the party seeking the divorce within 30 days. Service of the Complaint triggers a 20 day period during which the Defendant must respond with his or her Answer, or, in very unusual circumstances, a Motion. If the initiating papers were a Summons and Complaint, the response is an Answer (sometimes with Counterclaims) or, in very unusual circumstances, a Motion. Request for judicial intervention Once the Answer is filed the case is ready for the Court to start handling it. Some states, including New York, require filing of a special document advising the Court of that fact. In New York, the document is known as a Request for Judicial Intervention, or RJI. That RJI triggers the Court scheduling apparatus to assign the case to a Judge and to set up a preliminary conference. New York's Courts require that basic financial disclosure be turned over either before or at the Preliminary Conference. That disclosure takes the form of a document called the Net Worth Statement, a highly detailed list of assets and liabilities, two or three years of tax returns and current income information. Morning of the preliminary conference Depending upon the Court's procedures either the judge or a clerk or law secretary meet with the two sides to see what issues have been resolved and which will require the Court's attention, and to set a schedule for the case. There are a very limited number of issues in a divorce case - and the issues are always the same, even if the facts of the cases are different. In New York you have to resolve the grounds for the divorce (it's the only state in the nation in which no fault divorce is unavailable, so that issue comes first). If the couple has children then there are custody and child support issues. One spouse may also ask for spousal support (alimony). If the couple has property or other assets, including IRAs and 401k accounts, the question of how that property will be divided must be resolved (in New York this is called equitable division). One party may want some extra relief, such as permission to resume a previous name, or removal of religious barriers to remarriage. Preliminary conference Having none of the issues resolved will really start you off on the wrong foot with the court. Remember, the court has to deal with a huge number of cases. Fighting over who gets the wedding gifts isn't going to endear you to the judge. If you're both represented by an attorney, the attorneys may be asked to step into a private, off-the-record discussion about how the case's issues might be resolved. If what the court has heard is that there is no agreement on key issues and there are no substantial assets you can expect that the attorneys and you will get heavy pressure from the Court to compromise on as many points as possible, perhaps right on the spot. If at the end of the conference there are still unresolved issues the Court will have the attorneys agree to a schedule for discovery on those issues, There will be a discovery cutoff and a trial date set, most often within a year unless the case is unusually complicated. Pendente lite One possible variation that can alter the early case scheduling is a Motion for Pendente Lite relief. Pendente Lite means for the pendency of the case. It's a motion asking the judge to issue an order, typically affecting custody, visitation and/or financial support. This motion can be made at any time during the process, and can result in the judge making a determination that often closely resembles the final outcome of a divorce in which the Court is forced to make the financial decisions. For this reason, even though a Motion for Pendente Lite relief can seem expensive, it can be cost effective. If your spouse has a competent attorney and he or she sees the ruling on a motion for Pendente Lite relief, unless there's something truly and provably wrong about the decision (and that doesn't happen often) the attorney should be telling the client that it's as good idea to settle the case along the terms of the judge's ruling on the motion. Discovery If there is no motion or the ruling on the motion doesn't produce a settlement, the case moves on to discovery on any contested issues under the schedule set at the preliminary conference. Resolution prior to trial Because each state's laws on divorce are well understood by the attorneys, fewer than one in a thousand divorce cases are not resolved prior to trial. Unless someone is being completely unreasonable or the parties are hugely wealthy and have a great love of spending money on legal fees, there is rarely an incentive to go to trial in a divorce case. Issues that haven't been resolved by negotiation can often be settled pre-trial in a conference with the Court in which the judge is asked, "Under these circumstances, can you offer the parties any guidance on how you (the judge) typically rule in situations like this." If you hear an attorney ask this question, the answer will be important. It's the Court's way of saying "Based on what I know now, you can expect me to rule in this way." At that point you have to evaluate whether there is anything that the judge doesn't know that will be enough to change the ruling - and if there isn't, it's prudent to settle. Default judgments Sometimes a defendant doesn't answer at all. In that case the party seeking a divorce can seek a default judgment, including orders covering all the various forms of relief - the divorce itself, custody, child support, and spousal support can all be awarded by the Court on the basis of a default. Default judgments may avoid the fight at first, but can, under some circumstances, lead to a challenge later and a review of all the relief awarded. If you're moving for a default judgment your attorney will make sure that the service of process and affidavit proving that service is rock solid. If there's the slightest flaw in the service or the affidavit your divorce and all that flows from it may be subject to challenge, something that will be both upsetting and expensive...and then you'll likely face going back to the very beginning of the process and starting all over again. This is a mistake you don't want to make - going through a divorce once is tough enough!

David Isaac Schachter | May 12, 2014

David Schachter’s Top Divorce Survival Tips

Common Sense When Selecting A Divorce Attorney Use common sense and beware of a lawyer who tells you things he or she thinks you want to hear. There are no guarantees or promises a lawyer can honestly make about the outcome of your case. Chemistry With Your Attorney Chemistry between a lawyer and a client is important. Choose a lawyer that you respect. You will need to depend on that lawyer's advice and guidance with respect to the most important issues in your life. Don't Make It About Revenge When possible avoid the impulse to be unnecessarily punitive and vindictive towards your soon-to-be ex-spouse. You most likely will still have to deal with your former spouse long after the case and lawyers go away, especially if you share children. Take Alternative Dispute Resolution Seriously Take court mandated alternative dispute resolution seriously. Sometimes you have no choice but to fight. Often, however, trials represent the failures of the lawyers or the parties. At the end of the day, you have to pay for the trial and are stuck with the results a judge thinks is best for you. Demeanor During A Divorce Be patient. It took a long time to make your mess; it will take awhile to clean it up. Have Realistic Divorce Expectations There is a difference between being optimistic and realistic with regard to expectations at the conclusions of one's case. Optimists consider the best scenarios as likely outcomes too often, and frequently come away from the divorce process disappointed. Realists, usually those who accept that there is no "justice" up front, are more likely to leave the divorce process feeling like they were treated fairly. Bad Decisions Generally Have Consequences A client must recognize that the consequences of some of their decisions are uncorrectable. A good lawyer will work hard to fix past mistakes, but he or she cannot always correct the consequences of bad decisions. Reasonable Expectations of Your Attorney You are entitled to have your phone calls returned promptly, your questions answered honestly, and a billing statement provided regularly or upon demand. Selecting A Reputable Divorce Attorney To find a reputable lawyer, check with reputable sources. Personal referrals are important, but because every case and client is different, objective credentials are helpful too. You can also research attorneys of any specialty on the web by viewing client reviews on websites such as AVVO. Don't Take Divorce Advice From Others Not all advice is good advice. Everyone think that they are divorce experts because they themselves went through a divorce or they know someone who went through one. Keep in mind that every case is unique and follow the advice of your lawyer.

Joanna Marie Mitchell | Jun 29, 2010

Florida Divorce FAQ

What is an uncontested divorce? An uncontested divorce is when there are no disputed issues and the spouses involved agree on the terms of separation. A common misconception is that an uncontested divorce means the divorce itself is not disputed. However, if there are any issues about which the parties cannot agree, such as the amount of child support or the appropriate timesharing arrangement, then it is a contested divorce until those issues have been settled. If no agreement can be reached, even through options such as mediation, then the disputed issues will be decided by a judge at trial (the final judgment hearing). If my spouse is missing can I still get a divorce? If you cannot locate your spouse, you will first need to make a good faith effort to locate them. This can include doing internet searches, contacting any of their family members that you can locate, hiring a private investigator to attempt to locate an address, and other avenues. If you've made every effort to locate your spouse and they still are unable to be located, then an Affidavit of Diligent Search will need to be filed that documents all of your attempts, and a Notice of Action will need to be issued. This Notice of Action will be published in a local newspaper. If, after proper publication in the correct jurisdiction, your spouse still does not respond, then you can get a Default Judgment entered and proceed with the divorce. If you are not familiar with family law processes, you should consult with an experienced family law attorney who can assist you with the proper process and procedure. What if my spouse refuses to sign divorce papers? Your spouse being required to "sign divorce papers" is a common misconception. Your spouse is only required to sign papers if it is an uncontested divorce with no disputed issues, in which case there would be a Marital Settlement Agreement and some other forms that would need to be signed and filed with the court. If your spouse previously agreed to "sign divorce papers", but is now refusing to, in all likelihood you do not have an uncontested divorce, which means you will have to proceed as a contested matter. This means that you will need to file a Petition for Dissolution and get the Petition served on your spouse, and follow the normal process and procedure of a contested dissolution matter. If your spouse still refuses to cooperate (doesn't respond to the papers), then it is possible that you may be able to get a Default Judgment against them and finalize the divorce without their cooperation. Is there a requirement for legal separation in Florida before divorce? No, Florida does not have a legal separation requirement. Unlike some jurisdictions that require the parties to be separated for a certain period of time prior to filing for divorce, Florida has no such requirement. In fact, the parties do not even need to be separated in order to file for a Dissolution of Marriage. Do I have to file for legal separation in Florida? No, Florida does not have legal separation, per se. However, there is nothing that stops spouses from entering into a written agreement that governs their rights and responsibilities during a period of separation and that could or would ultimately be used to resolve those same issues in the event of a subsequent divorce. Typically, this would be done with a Marital Settlement Agreement that would be entered into with the contemplation that it would be used in future divorce proceedings, should you choose to pursue that option at a later date. How long do I have to wait to get re-married after I get divorced? There is no "waiting period". Once the judge enters the Final Judgment of Dissolution of Marriage for your case, and it has been properly recorded, you can apply for a marriage license to marry someone else the very next day. However, if you are required to go to trial for your case, it is possible that the actual recording of the Final Judgment of Dissolution of Marriage can take several weeks due to drafting and processing times. Therefore, before you apply for a marriage license to marry someone else, you should always check to be sure that your divorce has been finalized and that the Final Judgment of Dissolution of Marriage has been properly filed. Can I get an annulment instead of getting a divorce? Typically, the only grounds for an annulment are substantial and material representation which would constitute fraud (which can be very difficult to prove) or if the marriage was void from the beginning. A marriage is only void from the start if your spouse was already married to someone else at the time of your marriage. Unless your marriage is null and void due to your spouse being already married to someone else, then typically it is much simpler and quicker to get a divorce in Florida. However, if your marriage is null and void due to your spouse already being married at the time of your marriage, then you would need to get an annulment to decree the marriage null and void as a matter of law. What are the grounds for divorce in Florida? Florida is what is considered a "No Fault" State. This means that some states require infidelity, abandonment, abuse, or some other "grounds" or "fault" in order to file for divorce, Florida does not. All Florida requires is that the marriage be irretrievably broken. Typically, at the final judgment hearing, the reason why the marriage is irretrievably broken will be briefly addressed; however, a simple response such as "I'm tired of the fighting", or "I don't love her anymore", or "I can't deal with the control and verbal abuse anymore", or "He cheated on me", or whatever reason there is in your case, will suffice. No proof has to be offered to substantiate the reason. It is enough that you feel that way.

May 29, 2014

How can a divorce proceed if your spouse won't sign the papers?

Whether you decided to get an online divorce or your separation process went in a different direction, there are many reasons why a spouse may refuse to sign divorce papers: he or she is confused about what to do with the documents, is hesitant to go along with ending the marriage, is disinterested, or simply just wants to make you angry. Regardless of the reasons, there is one important thing to note: your spouse cannot legally prevent you from filing for divorce, whether the papers are signed or unsigned. Separation agreement Most divorces start with a separation agreement that spells out things such as who lives where, who pays the bills, or who gets the kids when. However, separation agreements are generally not something a court grants. You can draw one up (by yourself or with a divorce attorney’s counsel), but if your spouse won’t sign it, there is little you can do. Like a business contract that is signed by only one party, it’s pretty much meaningless unless you both agree to it. Getting served Irrespective of a separation agreement, if you decide to file for divorce, the law requires that your spouse be “served” or notified about the divorce and its proceedings. Generally, papers are served either through a legal processor or through certified mail within 120 days of filing for the divorce; your spouse then typically has 30 days to respond. If your spouse is dodging the processors, refusing to sign for certified mail, giving you a phony address, etc., you can go to court and ask for more time or request that you be allowed to post your intent to divorce in a legal notice placed in a local paper. Publishing the notice satisfies your requirement of notifying your spouse—whether he or she sees the ad or not. Be aware, though, that your spouse is under no legal obligation to respond to the divorce notice. While it will behoove him or her to respond so any concerns and demands can be addressed, not signing the paperwork just means your spouse’s side is never presented in court. And the divorce may drag on. Fault vs. no-fault divorce All 50 states now allow a person to file for divorce using the no-fault catchall. Instead of itemizing why the marriage is ending and assigning blame (e.g., infidelity, cruelty, etc.), a court will allow you to file for divorce without cause—or, a “no-fault” divorce. Because there is no finger-pointing, a reluctant spouse may be more likely to go along with a no-fault divorce knowing his/her reputation will not be damaged. Consult a lawyer to see if this is a good option for you. Default judgment Let’s say you’ve done everything right: you filed properly, gave your spouse notice, waited the requisite amount of time for a response, showed up for all court proceedings and generally followed the letter of the law. But your spouse is still not cooperating—now what? Ask your attorney about entering into a default proceeding. As the name implies, a default divorce is kind of like a forfeiture: your spouse didn’t show up or play by the rules, so now the judge is forced to rule in your favor. Essentially, a default divorce is a divorce based on the filing spouse’s terms. Things like division of property, child support, and custody arrangements spelled out by the filing spouse will generally be upheld by the court. The court will assume that if your spouse had any issues with the papers, he or she would have made them known. Abandonment Lastly, if your spouse is simply nowhere to be found—for example, no forwarding address has been left, his or her place of employment is unknown, the family hasn’t heard from him or her, etc., it is possible to file for divorce using the reason of abandonment. In this case the court will grant you a divorce without a hearing (or the signing of paperwork), but you will have to endure a 6-month waiting period and make more attempts to find your spouse. But in the end, even if you don’t find your spouse, you can still get divorced.

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