This is a fairly common question I receive at my Texas law office from potential divorcees who feel trapped by their spouse because the spouse is adamant about remaining in the marriage for one reason or the other.
At fault divorces in Texas
Once upon a time in Texas a divorce could only occur for very specific reasons. The spouse pursuing divorce had to allege and prove one or more of these reasons to obtain a divorce. If the party could not prove the alleged reason for divorce then the marriage remained. This approach to Texas divorce continues to exist as a “fault divorce”. Parties sometimes continue to allege fault reasons for divorce because it can help one party obtain a greater share of the marital property as punishment to the other spouse for causing the marriage to fall apart. In the 1960s Texas, along with many other states, adopted the no-fault divorce rules. These rules allow one spouse to pursue divorce and need only allege reconciliation will not occur.
It only takes one spouse’s assertion of discord. Although both spouses can participate in litigating issues in the divorce, there is virtually no ground to disprove marital discord. The no-fault divorce allows you to pursue divorce no matter how much your spouse tries to avoid or delay the divorce. Under the Texas Family Code, your spouse cannot trap you in a divorce by wanting to stay married really bad. You can file and pursue all on your own. The problems that many people in this situation face are the ways the other spouse tries to avoid the divorce.
Today’s post will discuss a few of these issues and how to address them.
Spouse refuses to “accept” the Texas divorce
As we have already discussed, your spouse does not have to accept the idea of the divorce. You can file a petition for divorce all on your own. Your spouse can drag his or her heels and try to oppose the divorce at every turn (and waste a lot of time doing it) but the only way your spouse will succeed in preventing divorce is by convincing you that the marriage should continue.
Often when one spouse is absolutely opposed to marriage he or she will try to drag out the divorce process because that spouse thinks if just a little more time is given to the marriage then things will get better. It is rare when this strategy ever works. Trying to patch a marriage back together when there is a lot of conflict, and you are taking steps to create more conflict, is usually not a recipe for success.
However, it is up to you to keep your resolve and move forward, even when your spouse makes it difficult on you. Your spouse’s ability to prevent the divorce by refusing to accept it is really about your willingness to do what you need to do for your life.
Spouse will refuse to accept divorce papers in Texas
This really only gets your spouse so far. In a lawsuit for divorce, your spouse must be served with a copy of the divorce petition and citation (a legal document explaining the recipient’s rights to respond to the lawsuit and when the response must be received) unless he or she waives service by signing a waiver. Normally service occurs where the intended recipient lives or works, but occasionally people try to dodge service under the believe that this will prevent the divorce from happening. That is not the case. Service can occur by alternate means. So instead of participating in the divorce proceedings he or she gets shut out. Not a good move.
Spouse will refuse to sign off on a divorce decree
The judge cannot force your spouse to sign a divorce decree but it won’t stop the court from ordering the divorce. An agreed divorce decree is the easiest and typically the cheapest way to obtain a divorce in Texas. If your spouse will not agree to the terms of the decree then a hearing can occur and a trial will take place on the divorce. The result of that trial will be a divorce. Then the judge will sign the decree even if your spouse does not. All this accomplishes is dragging out the process and costing a lot of money. It won’t stop the divorce.
Spouse insists on making the Texas divorce as difficult as possible
There are a number of annoying and potentially expensive routes your spouse can take to delay the divorce; but ultimately it won’t prevent the divorce. There is no way to drag out a divorce indefinitely. At a certain point the court will run out of patience to give continuances and you can drive that divorce. Often when spouses threaten to drag out the divorce and make it difficult, the threats turn out to be empty threats.
Spouse threatens to cause harm to you/child/pets/property
Here’s a very serious issue. If threats exist to cause harm to a living being or property then they need serious consideration. You need to hire an attorney, if you haven’t already. Let your attorney file for orders restricting your spouse from access to the target of the threats. These threats by themselves have no impact on delaying a divorce beyond trying to scare you into staying. Threats of domestic violence can actually accelerate a divorce in some cases.
Spouse will insist upon reconciliation
That’s a nice idea and while sometimes it happens, that insistence means very little. In Texas a divorce court can order the parties to enter marriage counseling prior to granting a divorce; but it is rare that a judge agrees to order counseling where one spouse is committed to the divorce. No reason to burn time or money on a lost cause. These orders generally only occur where both sides are open to the idea. If you know you want the divorce then there is no reason to open yourself to delay and wasted money.
Even if counseling is ordered, you cannot be required to change your mind or give up on the divorce. A judge may order you to attend counseling and make a good faith effort to talk in counseling; but a judge cannot order you to want to remain in your marriage. As long as you continue to desire an end to your marriage then you can obtain a divorce.