Divorce is a complex and emotional process that requires careful consideration and legal guidance. Often, individuals contemplating divorce may wonder if they can initiate the proceedings without their spouse’s knowledge. While the idea might seem tempting in certain situations, it’s crucial to understand the legal implications and ethical considerations surrounding such a decision. In this article, we’ll explore the question, “Can I get a divorce without my spouse knowing?” and shed light on the legal aspects involved.
What is Divorce?
Divorce is the legal process of ending a marriage. Couples often have comingled assets, debts, children, property, and other issues that must be dealt with in court. Judges will listen to evidence from both sides. This evidence will include full financial and asset disclosures, testimony regarding the couple’s relationship with each other, their relationship with their kids, and any other relevant information that might be helpful when the court makes decisions regarding child support, spousal support, parenting time, and asset division.
Some states follow the principle of equitable distribution, which means courts will create agreements that are fair, but not necessarily equal. Other states follow the principle of community property, where everything is split between the couple 50/50. Both philosophies have their benefits and downsides depending on your specific circumstances. Check to see which principle your state follows to get a better understanding of the divorce process before you file your complaint or speak to a lawyer. To learn more about divorce and family law, check out “Family Law Vs Divorce Law.”
The Legal Process of Divorce
Divorce proceedings typically involve a series of specific legal steps that must be followed, and transparency is a key element throughout. When a person decides to file for divorce, they are required to serve legal documents, such as a summons and a petition, to their spouse. This means that you, or a professional process server, must deliver the complaint and summons to your spouse so they know what your allegations are, and when to appear for court. This process ensures that both parties are aware of the legal proceedings and have an opportunity to respond.
Now, to answer the question: “Can You Divorce Without Your Spouse Knowing?” Realistically the answer is no. In most jurisdictions, divorcing without your spouse’s knowledge is not a legitimate option. Service must be attempted before a judge will ever issue an order for the dissolution of your marriage. Divorce proceedings typically require both parties to be present so the court can determine solutions for issues such as child support, parenting time, alimony, and asset division. The legal system is designed to uphold the principles of fairness and due process, and by denying your spouse the right to be informed about the divorce proceedings you are actively violating these principles.
- Service of Process: One of the fundamental aspects of divorce is the service of process. This involves formally notifying the other party about the legal action being taken against them. This notification is typically done by a process server or another authorized individual who ensures that the spouse receives the necessary legal documents. We will talk later in this blog about what to do when your spouse avoids service.
- Due Process Rights: Denying someone the opportunity to respond to a legal action violates their due process rights. The legal system aims to provide a fair and just resolution to disputes, and this requires both parties to have an opportunity to present their side of the case. Attempting to divorce without your spouse’s knowledge may result in legal consequences and hinder the divorce process.
You can also find additional rules, regulations, and resources on your local county courthouse’s website.
Consequences of Divorcing Without Spouse’s Knowledge
Attempting to circumvent the legal process by divorcing without your spouse’s knowledge can lead to various consequences:
- Invalid Divorce Decree: Courts may invalidate a divorce decree obtained without proper notification to the spouse, rendering the entire process null and void. Typically, trial cannot begin unless both parties have been personally served unless there are outside factors preventing that which we will cover later in this blog.
- Legal Repercussions: Initiating divorce proceedings without proper service of process may lead to legal repercussions, including fines or other penalties. Judges may also make negative inferences against you if you are caught attempting to file for divorce while purposefully not serving your spouse. Your case may also be dismissed with prejudice against you, meaning it may be difficult to start the process again. To learn more, check out “Why Would A Judge Dismiss A Divorce Case in Illinois?”
- Complications in Asset Division and Child Custody: A divorce conducted without the other party’s knowledge may create complications in asset division, spousal support, and child custody arrangements. These issues cannot be resolved without both parties present.
What Happens if I Cannot Serve My Spouse?
Sometimes spouses will avoid service on purpose, or the circumstances make service very difficult. If your spouse is avoiding service and several attempts have been made, then you can petition the court for a “constructive service” order. Constructive service occurs after multiple attempts have been made to serve the Respondent, their property appears to be vacant and without a forwarding address, and reasonable attempts have been made to locate the Respondent. If all these options have led nowhere, constructive service may be granted by a judge. This process involves a local sheriff posting a notice to the door of the Respondent’s last known address and publishing a notice in the news or local bulletin board where the Respondent may see.
A new court date will be set following publication of the notice. If your spouse does not appear, it is possible the judge will grant a default divorce. This will allow you to move forward with your divorce despite your spouse’s lack of involvement. Check out “What Happens If You Don’t Sign Divorce Papers?” to learn more.
If your spouse is in prison, they may also be difficult to serve. Prisons usually have a specific process for serving Respondents or Defendants inside of their facilities. While it will likely be necessary to call the facility and ask about their process, most prisons typically require additional paperwork on top of your divorce complaint to prove the person being served is indeed in their facility. This could mean attaching a copy of their judgment order from the court it was issued when you send your complaint and summons.
The only situation in which you could divorce your spouse without them knowing is if they have run away from home and gone off the grid. If you have attempted service in every way possible but cannot find your spouse because they are off the grid, it is possible that, despite constructive service and publication to newspapers, that your spouse never actually received notice. This is a highly unlikely situation but would be treated as if your spouse is just avoiding service and refusing to appear in court.
The principles of constructive service and default divorce were created to allow family courts to hear divorce cases even if one spouse avoids service so that the spouse seeking divorce can continue moving forward with their life. Courts believe that it would be inappropriate to force a couple to stay married because one member avoided the process.
Conclusion: Can I Get a Divorce Without My Spouse Knowing?
While the emotional challenges of divorce are undeniable, it is essential to approach the process with honesty and transparency. Attempting to divorce without your spouse’s knowledge is not a viable or ethical option within the legal system. Seeking legal counsel and navigating the process in accordance with the law ensures a fair and just resolution for all parties involved. If you are considering divorce, it is recommended to consult with an experienced family law attorney who can guide you through the legal proceedings and help protect your rights and interests.
MEET WITH AN ILLINOIS FAMILY LAW ATTORNEY TODAY
The Family Law attorneys at Koth Gregory & Nieminski understand that your family is the top priority, which is why we offer SAME-DAY APPOINTMENTS. If you need a divorce or other family law services, you can schedule your first meeting through our online appointment calendar. We look forward to meeting you.
Disclaimer: This article (Can I Get a Divorce Without My Spouse Knowing?) may contain information that is outdated as Illinois law continuously evolves. Meeting with an experienced family law attorney is the best way to ensure you are receiving the most current information answering the question Can I Get a Divorce Without My Spouse Knowing?
Published by Dustin Koth on December 2, 2024
