We all have heard of situations where one spouse wants the divorce, and the other one doesn’t. In these situations, the spouse who wants the divorce often just goes ahead and files for the divorce and serves their spouse. What happens if the spouse who has been served with divorce papers, despite now being a Defendant in an actual lawsuit, just does nothing? Can the divorce still happen?

Thankfully, yes. For the spouse who filed the divorce – who is now called the Plaintiff – there is a mechanism for the divorce to go on without the Defendant. Specifically, 21 days after the Defendant has been served, the Plaintiff can file a document called a Default with the Court, which recognizes that the Defendant did not file a timely response to the divorce papers.

Then the Plaintiff and the Plaintiff’s attorney draft a Default Judgment of Divorce, which is a divorce decree that has provisions for custody, parenting time, support, and asset/debt division that the Plaintiff believes to be fair. The Plaintiff and Plaintiff’s attorney file a motion to present that Default Judgment to the Judge. When they present it to the Judge, if the Judge also finds it to be fair, the Judge will sign it, and the divorce is complete – no participation or cooperation by the Defendant necessary.

In order to protect the Defendant’s rights, he or she must be sent notice of both the Default and the motion for entry of the Default Judgment. However, if he or she chooses to continue not to participate, the case will go on to conclusion without them. For whatever reason, I have had several Defendants in my recent cases who chose not to participate, and my client and I were able to enter Default Judgments and finalize the divorces.

The takeaways: 1) don’t let fear that your spouse won’t participate keep you from pursuing a divorce, if that is what you have decided needs to happen; and 2) if you got served, call an attorney, because doing nothing will not stop the process and will result in you having no say in how your divorce is decided. Whether you are the person seeking the divorce or the person who got served, I can help you through the process. Feel free to call me for a free initial consultation: (248) 457-4566. Or you can email me at peter@pgbplc.com.