What's In This Article
Getting a divorce is stressful and scary. Many couples have already separated by the time one of them decides to file for divorce.
If the relationship between you and your spouse has become toxic, it may seem easier to get by if you do not contact one another.
The usual way that divorce is filed is that one party initiates the complaint and serves the other party with papers to notify them. However, there are times when the filing party may fear violence from the other or do not know how to contact them.
In those cases, you may wonder if getting a divorce without your spouse knowing about it is possible.
Do You Have to Notify Your Spouse?
There used to be laws in nearly every state that your spouse had to receive notice before you file for divorce. That led to hardship for people in abusive relationships or whose spouses had left them with no contact.
There are several reasons why it may not be possible or advisable for someone to notify their spouse of their intent to divorce them.
- The spouse walked out of the marriage and has had no contact
- The filing party is trying to leave an abusive relationship
- The spouse has been missing, and no one knows how to reach them
- The spouse has threatened to harm themselves or others, making contact dangerous
All states now have laws that one party can file for a divorce without the other person knowing about it.
However, you cannot get your divorce finalized without allowing your spouse to defend themselves against your complaint. That may seem like an easy way to end an abusive relationship, but taking one spouse’s story without a chance for defense would not be fair.
Read More: How Do I Tell My Husband I Am Not Happy?
How To File for a Divorce From an Abusive Spouse
Most laws in our country say that the spouse has to have divorce papers served that state all of the complaints. They can either sign the documents agreeing to the terms and ending the marriage or get a lawyer and contest them.
However, there are ways to keep a person fearing abuse from initiating contact to serve papers.
Fear of Violence
The law says that divorce papers have to be served, but not that the filing party has to serve them. If you fear that your spouse will be violent when papers are received, you should not be the one to do it.
Your lawyer has access to private companies who specialize in serving court papers. They have security personnel that can diffuse a violent situation and certifies that the documents were served without you having to make contact.
Spouse Is Incarcerated
Even if your spouse is in jail, the divorce declaration still has to be served. Mailing them to jail or prison will not be sufficient. If you have court documents that prove they are incarcerated, the judge may assign the sheriff’s department to serve them.
Spouse Has Died
If it has been years since you have had contact with your spouse you should have your lawyer attempt to make contact before you try to file for divorce.
There is always a possibility they may have passed away in the time since you last saw them. In that case, it would be a waste of the court's time to go through any divorce proceedings.
Read More: How Can I Divorce My Husband Easily?
How Do You Serve a Missing Spouse?
If your spouse walked out on your marriage and has had no contact, you could have difficulty locating them. Every effort should be made to serve them with divorce papers. You will have to show the court proof that attempts were made to find them before they will move forward.
Your lawyer should be able to take a lot of this burden from you. If you give them the names of as many family and friends of your spouse as possible, their staff will contact them for you.
Every contact attempt and internet search should be logged to show the court that due diligence is done. If none of the contacts have information on your spouse’s whereabouts, the court has other options to explore.
The court can issue service by publication, meaning the divorce decree can go into an advertisement or publication generally circulated. It gives the other party ample opportunity to see it, and to contest it within a reasonable amount of time.
At one time this was done in the classified section of newspapers, but now there may be special publications or websites for this purpose.
A lot of divorce courts are hesitant to use services by publication. Because the opposing party rarely sees a published advertisement unless they are looking for it, it can seem that it is a way to serve notice without trying.
All attempts to reach the spouse through family and friends should be documented beforehand.
What if Your Spouse Is Evading Service?
Spouses often evade being served with divorce papers to avoid spousal or child support. Methods to locate them can be used with the court’s permission. For instance, in some cases, the court will allow the papers to be sent by certified mail if the spouse has been evasive.
Another option is to have the sheriff’s department serve the papers. However, unless the spouse has committed a crime, there is nothing they can do if they avoid them as well.
Your lawyer may be able to hire a professional process server. They are usually private investigators with the resources to find and serve people with court documents.
If you suspect your spouse is hiding to avoid being served, your lawyer can request the court issue service by publication. This will give your spouse a certain amount of time to respond. After that, the proceedings can proceed without them.
What if Your Spouse Refuses to Cooperate?
Most state laws require the spouse only be notified when the divorce complaint is filed. If they ignore the documents and do not contact the court, it does not mean that the divorce will not happen. They will have a certain amount of time to respond, after which the court will move ahead.
By not responding to the court’s notification, the spouse releases any rights they have to contest the complaints in the divorce decree.
The judge may attempt to compel them to participate, but will most likely complete the case without them. That is why documentation of every attempt should be made to prove they are choosing to ignore the action.
What if Your Spouse Contests the Divorce?
Once your spouse receives the divorce papers, they have a few options. They can sign them, which means they agree with your statements and choose to end the marriage. They can ignore the proceedings and allow the court to move forward without them. Or, they can fight back.
If they choose to contest the divorce, it could mean a lengthy and difficult process. You will both require lawyers or a mediator to help you reach an agreement you can both live with.
Usually, this has to do with allocating assets and agreeing to terms of financial support. The more you are willing to concede on these things, the faster the divorce can be finalized.
If you have minor children, the court could require you to attend a Divorce Education Course before the proceedings will end. It is a class set up to teach you and your spouse how to work together when children are involved.
Many states also have a mandatory waiting period from when a divorce is filed until it can be finalized. If all of the requirements are met, and all parties agree to the conditions, the court will grant the divorce.
There are a lot of reasons why a couple may decide to get a divorce. It could be that they married too young or for the wrong reasons. Their intimacy may have disappeared over time. Or they just changed and became different people than they were when they married.
Whatever the reason, ending the marriage may seem like the only way to move forward. However, there are times when one spouse decides they want a divorce and the other does not.
In those cases, it is common to wonder if it is possible to get a divorce without the other person knowing until it is done.
While you cannot get a divorce without telling your spouse, you can file for one and have someone else break the news to them. That can be ideal if you are in an abusive relationship.
In any case, the best way to get through a divorce is by finding a good attorney. They can not only guide you through the steps of negotiating assets and support, but they will help you locate and serve your spouse with divorce papers.
If your spouse walked out and cannot be found, your lawyer will use all of their resources to be sure due diligence is done to satisfy the court.
Lauren Cook-McKay is the Vice President of Marketing at DivorceAnswers.com. She holds a Master’s Degree in Marriage and Family Therapy (MFT) from the University of San Diego and applies her training in private practice to helping couples struggling in their marriage. She believes there is hope in all marriages and strives to provide therapy to couples that will lead them back towards a loving marriage, or an amicable divorce that brings peace and closure.