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Divorce Myth: Your spouse can block a divorce by objecting to it. February 7, 2008

Posted by csstephens in Dissolution, Myths.
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istock_000004511002xsmall.jpg 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.

Comments»

1. Jennifer - February 19, 2008

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.

2. Divorce Myth: Your spouse can block a divorce by objecting to it. — RosenInfo.com - May 12, 2008

[…] Divorce Myth: Your spouse can block a divorce by objecting to it.: “ […]

3. Lucie - February 11, 2009

My immigrant spouse abandoned me in 2005, after i was seriously disabled and unable to work after car crash- 4 months after we were married, when he obtained temp work permit. he lives in another state and i have no address for him. The sherriff in the county i have last address for him charges 250 for service of legal documents. I tried in 2006 to divorce. but he could afford a lawyer, and i had only small disability income and couldn’t. his lawyer told him how to evade service and still keep in good with immigration. the judge vacated the case and i had to pay the fees and still married to him. he files joint to get refunds based on my lack of income and use for proof to uscis we are “married”, and even took the entire couples stimulus payment last year. legal aid does not help w legal advice on divorces, just gives you a packet. no lawyer will do pro bono on divorces, not even a pro bono consult. the cheapest i saw was 35 for 30 minutes to tell me i was too poor to file bankruptcy and therefore could do nothing about the debts husband left me. irs said he is ok because we are married, uscis doesn’t care because he has permanent green card and his citizenship application is unaffected.
so, if your spouse lives in another state and is able to afford a lawyer, and you are very poor, they darn well can avoid a divorce and leave you with all the legal fees and service fees to pay.

4. Bryan - June 1, 2011

I have heard something about a 210 day deadline to finalize a divorce (dissolution of marriage) and have been trying to research this. I have found no documentation regarding a 210 day time limit and my wife has done everything possible to hold up this process. Is there any truth to this rumor that I heard about the 210 days and if so, where do I find it to reference?


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