Divorce is rarely a simple process, even with the best of intentions. And sometimes, when divorce papers are served, someone may drag their heels when it comes to finalizing the details.
A frequent question arises: how can I get a divorce if my spouse won’t sign the divorce papers. The answer is they do not have to sign anything for you to obtain a divorce.
To obtain a divorce, you have to have proper jurisdiction, file the appropriate paperwork in the correct court, and perfect service of process. After that, you can obtain a divorce without your spouse cooperating or doing anything at all. Things, of course, are not always that simple but let’s understand the process by looking at several scenarios.
If the proper court papers are filed in the appropriate court and service of process is made by a sheriff or private process server, your spouse will have 30 days to file an Answer to the Complaint for Divorce. If your spouse files nothing, then your spouse is not entitled to any notice of any future hearing dates or any future notices or pleadings. You can move to a final court date without obtaining further papers or cooperation from your spouse, and your spouse will not even be entitled to notice when the final court date will be.
You will need a good attorney to draft the proper documents and court orders and obtain the appropriate hearing to finalize the matter. It can be done without any participation by your spouse. Your spouse cannot stop you from getting a divorce.
Uncontested divorce or divorce with a settlement agreement is the next option. For this scenario, the parties will need to negotiate a settlement agreement that resolves all issues between them. In Georgia, you cannot obtain a divorce unless all issues that can be addressed in the divorce are addressed by the final judgment and decree that will incorporate the settlement agreement you reach. The problem that arises then is what happens if your spouse decides not to sign the settlement agreement or repudiates the settlement agreement after signing the paperwork?
In this scenario, there are multiple choices. Usually, the first choice, if the settlement terms in the paperwork are something you want as the final terms of your divorce, you can bring a motion to enforce the settlement agreement. A settlement agreement can be binding even if not signed by a husband or wife (depending on the circumstances), and a signed settlement agreement can be enforced even if your spouse tries to repudiate it.
The second choice, if you prefer to have your day in court then, the settlement agreement can be tossed out, and the parties can proceed in a more contested manner and go to a trial. The trial will be like those you see on television and in the movies with a judge, witness chair, direct and cross-examining witnesses, submission of evidence, the argument of counsel, and the like. In many cases, despite the extra effort and cost, it pays to take it to a final trial. In most cases, however, we will bring a motion to enforce the settlement agreement first. If successful, the court will enforce the settlement agreement and enter the divorce based on the terms in the settlement agreement, and the case is done.
What if the result at trial is better for you than what you had offered in a Settlement Agreement to your spouse? Too bad for him or her. I have had this happen in multiple cases. We reach a settlement agreement, we think it is fair, but the opposing party decides to not sign the agreement. We bring a motion to enforce, and the judge says, “well, lets have a trial then if you don’t want to sign it”. After the trial, as the judge announces his ruling, opposing attorney blurts out: “the terms of the settlement agreement were better…” To which the judge holds his hands up and says, “maybe your client should have settled then.” Getting such satisfaction is not going to happen in every case, but be careful what you end up bringing to trial. This is a reason why you want an attorney who is experienced and can counsel you on when to settle and when to not settle.
In some cases, mediation will be a necessary step as well. Mediation begins similarly to other court cases with opening statements. Mediation usually happens after discovery so all information is in the open and known to each side. In mediation your lawyer will be there with you and in a low pressure environment, without a judge, it will give both sides a chance to settle their case. The key to a good settlement is balancing cost vs benefit, risk/reward. There is no requirement to settle, simply the obligation to participate in good-faith. An added benefit to mediation, if we don’t reach settlement (and settlement can be on some of the issues, or all issues, or none of the issues) is we often learn far more about their case. So even a mediation with no agreement is often very valuable preparation for later negotiations and trial preparation.
Each party and their attorney will be in their own room, separate from the other party. So you won’t be pressured to negotiate eye to eye (although sometimes we may agree to meet together). The mediator will go back and forth between the two rooms and see if an agreement can be reached. If not, we call an impasse and move on to trial.
The Next Steps
If this is your experience, now is the time to talk to an experienced family law attorney who can provide you with clarity, answers, and a plan of action moving forward.
We are Georgia divorce and child custody attorneys. This is all we have done since 1995. We can help. If you need help or have any questions, we would be happy to speak with you via email, text, or phone. Check us out at www.shawlaw.com
Shaw Law Firm, PC
(770) 594-8309 (phone or text)