Divorce can likely be a difficult time for both you and your spouse, even when you both agree the marriage should come to an end. But what happens when you are done but your spouse won’t agree to divorce? Can you still obtain a divorce? The simple answer is yes, but read below for what to do if your spouse won’t agree to get divorced.
In Virginia, you can request a divorce based on fault (your spouse abandoned you, committed adultery or a serious crime, etc.) or by simply living separate and apart for a specific length of time. Neither of these grounds requires the consent or cooperation of your spouse. However, a judge will need to review your evidence and hear testimony from at least one witness on your behalf to establish that you meet the criteria for obtaining a divorce.
However, if you and your spouse have property that needs to be divided, spousal support, or child custody and visitation issues, you will not be able to get divorced without either a written agreement (between you and your spouse) or a court ruling. An agreement will require your spouse’s cooperation, as agreements require the consent and signature of both spouses letting the court know that there are no further issues to be decided.
On the other hand, court proceedings do not require the consent or participation of both parties, so long as you provide your spouse with sufficient notice of the court hearing and opportunity to attend (legal process). If you cannot prove that you served your spouse with legal process, the court will not allow you to proceed with putting on evidence related to divorce grounds, custody, spousal support, property division or child support.
If you do provide sufficient legal process, the court can decide all of your divorce issues, even in the absence of your spouse. He or she will have forfeited the right to present evidence. Once the judge sorts out all of these issues, the court will enter a final divorce order without the consent, participation or signature of your spouse.
If you want to obtain a divorce but your husband or wife does not, you should hire an attorney to ensure that you provide the required legal process to your spouse and to protect your interests. The experienced divorce attorneys at the DiPietro Family Law Group know the law and will protect your rights.
Contact us to schedule a consultation today at (888) 530-4374.