How do I get a divorce if my spouse is not ready?

What should you do if you’re ready for a divorce but your spouse is not? If you have tried to compromise and are tired of waiting, you may be ready to go ahead and start the divorce proceedings without them. You can, in most cases, still get a divorce even if the other spouse is not ready. A divorce that is filed without an agreement is called a contested divorce in Alabama.

The first thing you need in filing for any type of divorce is grounds. In Alabama, you can file for divorce without fault attributed to either spouse. This is called an uncontested, or no fault divorce. The spouse that files for divorce is called the Plaintiff. The responding spouse is called the Defendant. Grounds for a no fault divorce in Alabama include: the marriage is irretrievably broken down, spousal incompatibility, and voluntary separation for more than a year. You or your spouse must have resided in the state of Alabama for at least six months. For uncontested divorces without minor children, the Plaintiff will need to submit a Complaint for Divorce and Summons to the Circuit Court Clerk’s office. You can file a Complaint for Divorce in the Circuit Court of the county where the Defendant resides, in the county where the Plaintiff resides if the Defendant is not a resident of Alabama, or in the county where the spouses resided at the time of separation.

As the Plaintiff, you should try to discuss with your spouse that it would make things easier, faster, and cheaper to just sign their portion of the paperwork and get an uncontested divorce. You can get your decree within a month or two without going to Court. If they don’t want to reach an agreement and sign paperwork, then you will have to file a Contested Divorce. This is began with the filing of a Complaint, which is served on your spouse. If the Defendant won’t respond or otherwise involve themselves in the divorce, then you can petition the court for something called a default divorce.

If the Defendant does not respond within thirty days to your Divorce Complaint, you can then file for a default divorce. In Alabama, if you cannot find your spouse then you have to serve them by putting an ad in the paper. These types of divorce procedures are sometimes called divorce by publication. This is where a spouse filing for divorce puts an ad in a local newspaper about the divorce when the other party cannot be contacted.  Generally, if the missing spouse does not answer the advertisement, then the divorce filed by the other spouse can be granted and they can receive their divorce.

In cases where your spouse may not be ready to divorce, but you are, they may refuse to respond to service of process (i.e. signing their portion of the paperwork you file with the court). If they refuse to respond, or you can no longer locate them, a default divorce can be awarded by the court if you a petition asking the Judge to do so.  

When you file the Divorce Complaint and the other spouse does not respond within the thirty day time frame, then the Plaintiff generally gets whatever they asked for in the Divorce Complaint. If the Defendant does not respond, the court will schedule a hearing to discuss the default divorce request. This means your local divorce lawyer will need to accompany you to court for the hearing, which can run up the bill on attorney’s fees. Not to mention the cost of trying to locate the Defendant to serve them with paperwork.

Also, if the spouse is served properly and responds to the Complaint, then the case can lasts a very long time. In such cases that end up being tried before the Judge, the trial date can be set for six months or even over a year after you file, making the process much more drawn out and expensive. If you are ready for a divorce, but your spouse is not willing to cooperate, then you should consider filing a contested divorce and hope they don’t respond for otherwise make it more difficult for you after the case is filed. 

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