John Roska: The Law Q&A
Q: Can my spouse stop me from getting divorced? He says he won't sign or agree to anything. Does he have to sign something for me to get divorced?
A: Your spouse can't stop you from getting divorced. You don't need the spouse's consent. If the spouse fights things, you may not get exactly what you want, but you'll get divorced.
The idea that one spouse can "refuse to sign" and prevent a divorce is a big myth. Your spouse does not, for example, have to sign anything when served with court papers. And if the spouse evades service, you can get divorced by publishing notice in a paper.
Once begun, a divorce has two main parts: grounds, and everything else. That "everything else" always means a division of property and debts, and sometimes a determination of child custody and support. But before anything else can happen, there first must be grounds to dissolve the marriage.
Illinois has two kinds of "no-fault" divorce. Both require some period of separation. One requires signed documents; the other does not.
If you're been separated for two years, nobody needs to sign anything to prove grounds. You just say that the separation has caused an "irretrievable" breakdown of the marriage.
If you've been separated for at least six months, but not yet two years, each spouse can sign a waiver of the two-year separation requirement.
(You can file before those periods have been satisfied, as long as you've been separated for six months or two years by the time the divorce is granted.)
If you haven't been separated two years, and your spouse won't sign anything, you can still get divorced. You'll just have to prove one of the 10 different "fault" grounds for divorce. "Mental cruelty" is the most common, simply because other grounds — like adultery — are harder to prove.
Your spouse could contest the grounds for your divorce, but probably not successfully. If you're not still sleeping in the same bed, you can probably prove mental cruelty, and dissolve your marriage. It's not as bad as it sounds.
Proving some kind of grounds — fault or no fault — will dissolve your marriage. You'll then have to divide property and debt, and if there are kids, decide custody and support.
If you can resolve those things by agreement, there's usually a written version of that agreement that each spouse signs.
If you can't work it out by agreement, a judge will have to decide. How difficult or complicated that can be depends on whether your spouse actively contests things, or just passively resists. If your spouse won't agree to anything, but doesn't come to court to contest things, that could delay but not stop things. You'll probably get what you want.
If your spouse comes to court to fight things, a judge could decide things the spouse's way. That's possible in any contested court case.
But, even if you don't get all that you want, you'll still get divorced. You won't have to stay married just because your spouse objects, or fights the divorce.
John Roska is a lawyer with Land of Lincoln Legal Assistance Foundation. You can send your questions to The Law Q&A, 302 N. First St., Champaign, IL 61820. Questions may be edited for space.