Unfortunately, if your spouse files for divorce, there’s virtually no way you can stop the court from entering the divorce decree. Why? Because while divorce is not a constitutional right, all states recognize no-fault divorces as a matter of public policy.
What this means is that all your spouse needs to obtain a divorce is to file a divorce petition in your local circuit or district court stating that the two of you have irreconcilable differences that have irretrievably broken your marriage. He or she must, of course, notify you of the fact that he or she filed such a petition. This is called service of process and can be done by a process server, sheriff’s deputy or other official personally handing you a copy of the petition. You then have a limited period of time, usually 21 days, to file any response you care to make. Doing so, however, more or less proves your spouse’s allegation of irreconcilable differences.
Default Divorce
If you think that simply failing to respond to your spouse’s divorce petition will stop the divorce, think again. All states recognize default divorce, meaning that if you do nothing after receiving proper notice, your spouse can request the court to finalize the divorce without your participation in it. Keep in mind that not only will the court likely do this, it may also give your spouse everything he or she asked for in the petition, including such things as the following:
- Child custody
- Child support
- Spousal support
- Marital property division
Cooling Off Period
Many states require a cooling off period between the time the divorce petition is filed and the time when the court issues its divorce decree. This period ranges from six months to more than a year depending on the laws of the state in which you live. If, during this cooling off period, you and your spouse reconcile, he or she likely will be amenable to withdrawing his or her divorce petition. This stops the divorce in its tracks.
Legal Separation
If your religious beliefs preclude divorce or you have some other valid reason for wishing to stay married, even though your spouse does not, you may be able to talk him or her into changing the petition from divorce to legal separation. A legal separation is virtually the same as a divorce in terms of child custody and support, spousal support and property division, but the two of you remain legally married and neither of you can marry someone else.
Seeking Legal Advice
Your wisest strategy if your spouse files for divorce is to seek the advice, counsel and representation of a divorce lawyer. Not only can he or she advise you of the specific laws in your state, but he or she can also look out for your best interests. Contact a divorce lawyer, like the lawyers at May Law, LLP for more information about divorce decrees.