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What if my spouse does not agree to a divorce?

By Jeffery M. Leving

Divorce is never an easy process, but it becomes even more contentious if one spouse refuses to agree to the dissolution of the marriage. This is not uncommon. In fact, it is so common that the State of Illinois has developed a procedure for these specific types of situations.

How does the divorce process work in these situations?

The exact process can vary by state. In Illinois, it generally starts with one party filing a Petition for Dissolution of Marriage with the court. After you file the Petition with the court, you must correctly provide notice of the Petition to your spouse. There are specific protocols to properly have the Petition served upon your spouse. Alternatively, you may be able to serve your spouse by substitute service or by publication. Service must be proper, otherwise the court could lack jurisdiction to dissolve the marriage.

Your spouse then has the opportunity to file an appearance and a response, and/or to otherwise plead.  It is important to make sure that the Petition filed with the court is accurate and meets all the court’s legal and procedural requirements so it is not defective. This step of the process provides an opportunity for the other spouse to present a defense. If there are any errors in the Petition, they could try to get it dismissed resulting in a hurdle you could have avoided by getting the Petition right in the first place.  A defective Petition may need to be amended, likely requiring leave of court to amend the Petition so you can draft it correctly and file it again.  Get it right the first time to avoid creating avoidable stress and providing additional time to the opposing party to develop legal strategies in opposition to your goals. As my father used to tell me, the devil is in the details.

Next, both parties can either negotiate a divorce settlement to present to the court for approval and entry, or, if you and your spouse cannot reach an agreement, mediation may be helpful. Negotiations do not need to be just between you and your soon-to-be ex-spouse. You can retain legal counsel to help guide the negotiations which is advisable. If negotiations and mediation fail, litigate strategically with careful preparation focused on attaining success in the courtroom, and the court will decide. Make sure you are 100% prepared for court and you have a sound legal strategy. It is important to note that in highly contested matters where the stakes are high, competent legal representation can be the difference between success or failure.

So I can still get divorced?

It is often possible to move forward even if your spouse does not want a divorce. You could pursue a divorce by default judgment if, for example, your spouse does not want a divorce and attempts to thwart the process by failing to file an appearance in the case after being provided proper notice.

Obtaining a divorce by default judgment can be complicated and risky but can succeed with strategic planning and managing timelines. Success in this process can possibly save you time, expense and stress. However, do not mistakenly provide the opposing party the opportunity to file an appearance and respond long after they missed the deadline to do so, as this could impair your ability to obtain a default judgment in certain circumstances. That is why it is critical to manage the process so the opposing party is provided notice  correctly. After the divorce by default judgment is secured from the court, it is important it was obtained correctly so that the court does not later set it aside and everything you fought so hard for is lost.

The default judgment needs to be obtained according to the very specific laws of the state or the opposing party may prevail on their claim that they did not receive proper notice of the dissolution proceedings, and you may be required to start the divorce process over and litigate the divorce you thought was over and done. Consulting with a highly experienced family law attorney before attempting to obtain a divorce by default judgment can help to minimize the risk of failure or the default judgment being granted but set aside later by the court.

Will this impact children if they are present?

I cannot overstate the importance of quality time we spend with our children. This is important to me, and this is why I co-authored the first real joint custody law in Illinois. Additionally, Illinois state law previously referred to designated time with children after a divorce as visitation. State law now refers to this time as parenting time.

Illinois state law requires that the parents file a parenting plan before a divorce is finalized. This plan should include provisions for parenting time and decision-making for the children, especially decisions about their schooling and medical care. The court looks at the best interest of the child when reviewing these plans. If the parents cannot decide on a parenting plan, the court may appoint a guardian ad litem or attorney to represent the interests of the child and develop its own plan.

One factor the court often considers when looking at the best interest of the child or children is the cooperation of the parties. Evidence of the other party’s failure to support the best interests of the child could work in your favor in the court’s determination to safeguard the children.

What if the other parent does not comply with the court’s decision?

If the other parent continues to create dissension by violating court orders even after the divorce is settled, you can ask the court to step in. At this point, the court may hold the other parent in contempt of court until they are in compliance with court orders. The court can issue sanctions as serious as jail time.

Jeffery M. Leving is founder and president of the Law Offices of Jeffery M. Leving Ltd., and co-authored the first real Illinois joint custody law and other laws. In addition to How to be a Good Divorced Dad, he is the author of Fathers’ Rights and Divorce Wars. To learn more about Jeffery M. Leving and his latest court victories, follow him on Twitter and Facebook, and view his videos on YouTube.