A “myth” we come across with surprising frequency is that you need your spouses’ consent to get a divorce. As an Oregon divorce and family law lawyer, I am repeatedly surprised by the number of people who believe spousal consent is required. This myth comes in varying forms, from (1) a belief you can’t get divorced unless your spouse agrees to get divorced, to (2) you can’t start the divorce process unless your spouse “accepts” the divorce papers, to (3) you can’t get a divorce unless your spouse signs the final judgment. In Oregon, all three are myths, myths, and more myths! While your divorce may not be simple if your spouse objects, your spouse cannot stop a divorce that you want. If you want the divorce, and you jump through the right procedural hoops, you can get the divorce with or without your spouses’ blessing.
This myth is wrong for several reasons. First, Oregon is a “no fault” divorce state, meaning you don’t have to prove any wrongdoing to get a divorce. All you have to prove is that you have “irreconcilable differences.” ORS 107.025. The fact that you want a divorce and your spouse doesn’t is considered an “irreconcilable difference.” So, when someone “objects” to a divorce, really all they can do is dispute the terms of the divorce (custody, parenting time, property division, support), but not the divorce itself.
Second, your spouse cannot block a divorce by not accepting the divorce papers. To start a divorce action, you need to serve your spouse with the divorce petition and other pleadings. Your spouse can accept them voluntarily, or you can serve your spouse without their consent. If your spouse is avoiding service, you may be able to get permission from the court to allow for “alternative service”, basically permission to serve your spouse through posting, mailing, or even publishing information about the divorce in the newspaper! If your spouse is dodging service, talk to your lawyer about whether alternative service is a good option.
Finally, your spouse does not have to sign the final divorce papers for it to be approved by the court. If your spouse won’t cooperate, you can get a divorce by “defaulting” your spouse. Once you file your divorce petition, serve your spouse (with or without their blessing), and wait 30 days, you can get an order from the court barring your spouse from objecting to the divorce. At 90 days after service you can submit a final judgment of divorce, without your spouse’s signature. Even if your spouse objects and files a response, the judge can and will order a divorce over his or her objection at trial.
So, now you know. If you are contemplating divorce and your spouse tells you that you can’t get divorced without their permission, consult with a family law lawyer. Your spouse either doesn’t know, or they are misleading you.