Do Both Parties Have to Sign the Divorce Papers?
By Beverly Bird
Different kinds of divorce papers can be as numerous as the problems they address and the functions they serve. Only a few require the signatures of both spouses, and some don’t require any signatures at all. A spouse doesn’t have to agree to a divorce for it to happen. If he won’t cooperate and won’t sign a particular document, the court will usually finalize the divorce without his participation.
Generally, the spouse who files for divorce is required to sign her own petition or complaint, although some states will allow her attorney to do it for her. The spouse on the receiving end of the complaint will sign and file his own answering document. However, some states have options for divorce by mutual consent. In these states, if spouses agree to end the marriage, they can file a joint petition for divorce. They must both sign it. If one spouse changes his mind and refuses, the other can file a regular petition on her own and initiate a contested matter.
Service of Process
When only one spouse files a petition for divorce, she must have it served on the other spouse so her state has jurisdiction over him. He can sign a waiver, indicating that he’s in agreement with the divorce and does not require official service by a sheriff or other process server. He can also sign an acknowledgment of service, confirming that he received the paperwork. Some states allow for service by registered mail; in these jurisdictions, he would have to sign a mail receipt. If he refuses to sign for the petition of his own accord, the other spouse can resort to other means with the court’s approval. She can use service by publication if the sheriff can’t pin her spouse down to give him the papers. His refusal to sign won’t stop the divorce. After the newspaper publishes notice, the other spouse can file for default because he didn’t participate, and she will ultimately get her divorce.
Marital Settlement Agreements
In an uncontested divorce, when parties resolve all the issues of their marriage, a property settlement agreement or marital settlement agreement is prepared to detail the terms so they can become part of a divorce decree. This document requires the signatures of both spouses because it is an agreement entered into by consent; each party's signature is his confirmation that he is agreeing to the deal. Courts usually require notarization of the signatures for this reason. Often, when spouses have retained counsel, their attorneys will sign such an agreement as well.
When a divorce goes to trial because a judge must decide issues between spouses, no one but the judge must sign the decree. The decree is his issued order resolving contested matters. Neither spouse has to like it or approve it for it to be binding upon each of them. However, all states have procedures in place to allow a spouse to appeal a judge’s decisions or to ask him to reconsider it.
- Texas Divorce Guide: Waiver of Service
- Divorcenet.com: Contested Divorce – After the Trial
- New Hampshire Judicial Branch: Superior Court – Joint Petition for Divorce
- Kinsey Law Offices: Marital Settlement Agreements
- Bennett & Associates: Frequently Asked Questions
- Famularo & Associates: Setting Aside a Default Judgment
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.