Can the Respondent Finalize a Divorce if the Petitioner Won't Sign?
By Beverly Bird
Sometimes a spouse files for divorce only to find out that the process is not going exactly the way she anticipated. She might realize that a court isn’t likely to grant her everything she asked for in her petition, or that you won’t agree to everything she wants in a marital settlement agreement. However, once the proceedings are under way, there’s only so much she can do to stall them. This is true even if she was the one who filed for divorce first.
Marital Settlement Agreement
The only papers a petitioning spouse must sign are her original petition or complaint, and possibly a marital settlement agreement if you've resolved the issues of your marriage through negotiation and consent. She does not have to sign a decree for your divorce to become final if it is issued by the court after a trial. She doesn’t have to sign a marital settlement agreement either, if she decides she doesn’t like its terms. This is a document she’s entering into voluntarily, so the court won't force her to do so. However, this doesn’t prevent you from divorcing -- it only prevents you from settling out of court.
Eventually, if you and your spouse do not submit a marital settlement agreement to the court, the court will schedule a trial. If a trial is scheduled, a judge will decide issues of property division, custody and support for you. If she wants to prevent this from happening, your ex's only option is to withdraw or dismiss her divorce petition. This will end your divorce proceedings. However, you can file your own divorce petition the next day and begin the process again. If you do this and she doesn't respond, the court will grant you a divorce by default, without her cooperation.
Amending Your Pleadings
You might be able to prevent your spouse from withdrawing or dismissing her divorce petition under some circumstances. When your spouse served you with her petition, you or your attorney probably filed an answering pleading with the court. This might have been an “appearance,” simply letting the court know that you want to be involved in the case. It might have been an “answer,” responding to fault allegations in her petition or the terms by which she wants to end your marriage. In both cases, she can end the proceedings by dismissing her petition. However, if you filed an “answer and counterclaim,” she can’t stop the divorce proceedings by withdrawing her petition because a counterclaim acts as your own lawsuit for divorce. If you think your spouse might dismiss her petition, speak with a lawyer or the court to find out if you can amend your appearance or your answer into a counterclaim. Some states will allow you to file a counterclaim in addition to your answer or appearance, as a second document.
Read More: Types of Pleadings in a Divorce
Motions to Dismiss
If your spouse is dragging her feet and you want to force a trial rather than wait for the court to schedule one for you, you can take matters into your own hands. You can file a motion to let the court know she’s not cooperating. Alternatively, you can file a motion to ask the court to dismiss her petition because she has failed to prosecute her case by moving forward with the proceedings. You would have to start the divorce process over again by filing your own petition, but you can ask the court to order her to pay your counsel fees and legal fees with such a motion. The court might grant your request because she forced you to spend this money by filing a divorce lawsuit that she didn’t intend to complete. Such punitive damages might convince her to resume negotiations and sign the settlement agreement after all.
- Clerk of the Superior Court’s Office, Maricopa County, Arizona: Frequently Asked Questions
- Womans Divorce: The Steps of Divorce – Answers From the Expert
- Vermont Judiciary: Answering the Divorce Complaint and Preparing Your Own Counterclaim (PDF)
- Gregory S. Foreman: Two Unusual Strategies for Encouraging the Opposing Party to Settle
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.