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.
I appreciate the your comments regarding spouse can not stop a divorce. The comments appear to be written from the petitioners perspective. In other words, the respondent can not stop divorce just by ignoring – well here is a situation that I would like your comments on….what if the petitioner trys to stop papers after they have been signed and submitted to the court – only thing pending is us attending parenting session this week (we live in Multnomah County). He claims he did not read the papers and now trying to stop. We read through the papers together before submitting to his attorney, they were notarized and signed by both of us, submitted to the court by his attorney – now he is trying to stop them. Another interesting item; he requested the 90 period be waived, which I agreed to – we have been apart for over 1.5 years.
Would also like to know what happens if one party does not attend parenting session – will divorce go through with restrictions around visitation?
Thank you for your comments.
In Oklahoma Divorce Court, an objecting spouse cannot BLOCK a divorce but can there are ways for them to PROLONG the divorce.
In illionis, the divorce has been going on for 3 years now. Can one party just say”enough” and request that it be over? Custody was just settled in trial. But the financial piece is not over yet. One party has major $ the other none. The one w/o the $ wants this to be over. Please help with an answer.
Mary:
In Oregon cases usually resolve much faster. In Oregon, if the opposing side has not filed a response, the case can be dismissed without the other party’s consent. If they have filed a response, dismissal can only be done by mutual agreement. If you have a contested case and want it over, you need to get in front of a judge for a final trial.