Numerous clients have told me that they want a divorce but can’t get one because their spouse will not “sign the papers”.  They are surprised when I tell them that their spouse does not have to sign anything.  As long as certain legal requirements are met, you can get a divorce.  You need to have a sufficient period of legal residency in the state and you must have legal grounds for the divorce.  Because of due process requirements, you also need to show that your spouse has been “served” with the divorce request.  This request is call a “Petition For Dissolution Of Marriage”.  The sheriff or special process server brings the Petition to your spouse.

These are ways to start a divorce without having papers served.  For instance, papers are not served if you choose to have a Collaborative Divorce.  Service of papers can also be avoided if you have a mediated or a negotiated divorce, or have made other arrangements through your attorneys.  These are all good topics for future blog discussion.

When your spouse says that she/he  will not “sign” for the divorce, she/he may be attempting to control or intimidate you so that you will not seek a divorce.  The irony of this is that you will be able to get the divorce, but absent a signed agreement, your spouse has given up input and control of the outcome by allowing a judge to make the decisions.

Illinois has a requirement that either you or your spouse must have continuously resided in the state for at least ninety days before commencing the action or before there is a final hearing of the case.

There are several legal grounds for a divorce in Illinois.  The most frequently used grounds are the “no-fault” grounds of Irreconcilable Differences and the “fault” grounds of Mental Cruelty.  If you and your spouse do not have an agreement for the divorce and your spouse will not sign papers, you can use the no fault grounds of Irreconcilable Differences if you and your spouse have lived separate and apart for two years.  This two year requirement can be waived and reduced to a separation period of six months if there is a signed agreement to do so.  Sometimes divorcing couples choose to reside together while their divorce is pending for financial or other reasons.  It is possible to show that you have lived separate and apart even if you have resided in the same home if you are not living as “husband and wife”.

If you use Mental Cruelty as your grounds, there is no waiting period other than the legal residency requirement.  Normally, you would not use these grounds if there is a divorce agreement.  This means that even if your spouse does not sign papers, does not want a divorce, and you do not have an adequate period of separation to use grounds of Irreconcilable Differences, you can get a divorce using grounds of Mental Cruelty if you can prove these grounds to the judge.

Your and your spouse will sign papers if there is an agreement regarding the divorce.  In that case, you will both sign a Marital Settlement Agreement.  This contains the financial terms of the divorce, such as support, division of property and allocation of debts.  If you have children and agree to joint custody, you both sign a Joint Parenting Agreement that sets forth a time sharing schedule, describes areas of joint decision making and outlines ways to communicate regarding the children.

If there is not an agreement regarding the divorce, there will be a hearing in front of a judge.  The judge will decide the terms of the divore and grant the divorce even if your spouse does not “sign the papers”.

Roselynn Gilbert Don

Law Office Of Roselynn Gilbert Don

Divorce, Collaborative Divorce, Mediation

2530 Crawford Avenue   Suite 106

Evanston, Illinois   60201

Phone:(847)869-9720

Fax: (847) 869-9725

Email:  Roselynn@DonLawOffice.com