Can My Spouse Evade Divorce?

One way some difficult parties choose to get under the skin of their soon to be former spouse is by making the inevitable more difficult by avoiding service of the summons and complaint for divorce or even worse, refusing to sign the final agreement. Not to worry if you are the plaintiff spouse trying to obtain a divorce. You can still move forward; it just becomes a little more time consuming.

What if you’re unable to serve the papers?

Contrary to what someone might think is a sound strategy, avoiding service of any documents connected to divorce proceedings will not stop the divorce from happening. You cannot force someone to remain married regardless of your reasons and there is a process to deal with each of these situations are they arise.

Some reasons it may take more than the standard procedure to accomplish a divorce are that:

• A partner moves without providing a forwarding address. People leave to retreat from an unhappy marriage when they don’t like conflict. In some cases it becomes a situation of “out of sight, out of mind” once they have decided the relationship has run its course.
• Your spouse can’t be reached. Maybe he or she serves in the military or is a member of law enforcement on special assignment that leaves no form of communication for an extended time.
• Being spiteful is fun for some. Your soon to be ex may be purposely avoiding service in order to make it more burdensome for you, especially if he or she knows you’ve already moved on. Usually there are hurt feelings or anger involved, or sometimes it can purely be strategy to buy time to hide property from asset division.

A note about parties who separate but never file for divorce: Something every spouse needs to understand is that merely walking away from your marriage and starting over somewhere else does not mean that you are divorced and are free to begin anew. No matter how much time has passed or where you have relocated to, until you obtain a divorce you cannot legally remarry. Refusal to face properly ending your marriage under the law can have serious implications later in life when it comes to estate planning, filing taxes, or even division of post-separation acquired property.

Serving a difficult spouse

The whole purpose behind serving papers on a party in a legal dispute is to ensure that he or she has been notified that they are now involved in litigation, and to give that individual the opportunity to respond by either agreeing with or defending against the allegations being made. It’s a matter of fairness and not blindsiding someone by subjecting them to a court order they didn’t know was coming.

As such, it is required that you make reasonable efforts in good faith to track down the person to be served. Because there are time limits for obtaining service, it does not always end successfully when a spouse has somehow made himself or herself unavailable. When you’ve given it your all and have come up empty, you have other options for meeting the requirement for service of process.

Service by posting or publication may be used when you have been able to show the court that you have not been able to locate the person who needs to be served. This can be done by filing an affidavit containing the actions you have taken to locate your spouse such as:

• Verifying that your spouse has vacated his or her previous addresses.
• Contacting relatives, coworkers or friends to see if they know his or her location.
• Conducting an internet search of public records.
• Hiring a private investigator to try to locate your spouse.
• Obtaining proof that your spouse is intentionally avoiding service.

Once the court is satisfied, it may order service one of two ways:

1. Mailing a notice to your spouse’s last known address and having the sheriff post the notice at the courthouse door or on a bulletin board within its immediate vicinity.
2. Publishing the notice at least once a week for three weeks in at least one newspaper circulated in the county where you have filed for divorce.

Once you have accomplished the task of service of the summons and complaint, your spouse has a limited amount of time within which to respond. If no response is received, the court can issue a default judgment in your favor. Basically, it means you win the relief you requested, and your divorce will become finalized once any other requirements are completed.

If the issue is that your spouse is refusing to accept, sign and return a settlement agreement, your divorce attorney will be able to guide you through the remaining steps to finalizing your divorce. It may just take a little longer than you hoped.

It is often the small details that can create the most trouble in a divorce if they don’t go smoothly. Let the Bethesda high-conflict divorce attorneys at McCabe Russell, P.A. explore the legal options best suited for your situation. Schedule your consultation now by calling 443-917-3347, or feel free to reach out to us through our contact form.