Recently, a client asked me if her spouse could prevent her from getting a divorce by not filing an answer to the complaint for divorce. The answer is no. One spouse cannot prevent the other spouse from getting a divorce. If you want a divorce, you are legally entitled to obtain a divorce.
Since Alaska is a no-fault state, a court can grant you a divorce based simply upon an incompatibility of temperament making the continuation of the marriage impossible. However, even though one party cannot prevent the other party from getting a divorce, the uncooperative spouse can still make the divorce case expensive and stressful by simply not participating in the case.
If your spouse does not want a divorce, there are three tactics your spouse might attempt to use at the beginning of your case: (1) avoiding acceptance of service of the complaint for divorce, (2) failing to file an answer within 20-days of being served with the complaint, (3) and ignoring your lawyer’s letters requesting your spouse to hire an attorney or to answer the complaint.
1. Avoiding Acceptance of Service of the Complaint for Divorce
Sometimes the person who doesn’t want the divorce will try to avoid accepting delivery of the complaint. If you and your lawyer decide to mail the complaint, your spouse could decide not to pick up the complaint. If this occurs, the post office will send it back to your lawyer’s office.
If post office returns the complaint to your lawyer’s office, the complaint is returned by mail; then the next step is to hire a process server. A process server is a person who is legally authorized to deliver (serve) legal documents to a person involved in a court case. If one party repeatedly tries to hide from the process server by pretending he or she is not home, then your lawyer may decide to have the process server deliver the summons and complaint to your spouse’s place of work.
Process servers are trained to find people who are trying to avoid receiving legal documents, so it is unlikely that it will take very long for the process server to find your spouse.
2. Failing to File an Answer Within 20-days of being Served With the Complaint
Once the process server delivers the complaint to your spouse, he or she has 20 days to file to file an answer to the complaint. Your spouse may continue to stall by not filing an answer to the complaint.
3. Ignoring the Letter Your Lawyer Sends Asking Your Spouse to file an Answer to the Complaint
If the 20 days passes and your spouse has done nothing, your lawyer may decide to write a letter to your spouse. The letter will not give legal advice, but it will remind your spouse that he or she is running out of time, and will urge your spouse to consult with a lawyer about a defendant’s obligation to file an answer. The letter may also point out that the Alaska Court System’s website has useful information about the divorce process.
Moving Forward with Your Divorce without Your Spouse’s Participation
Your spouse may simply ignore your lawyer’s letter and continue to do nothing. Fortunately, the civil rules have a remedy for the failure of a party to answer a civil complaint, including a complaint for divorce. The remedy is called a default judgment. In a divorce case, it is called a default divorce or default divorce judgment. So if your spouse does not respond to your lawyer’s letter and your lawyer does not hear from a lawyer representing your spouse, your remedy is to move forward with the process of getting a default judgment and final decree of divorce.
Steps to Getting the Default Divorce Decree Entered
Here are the steps necessary to get the divorce decree entered:
1. Get an Entry of Default Against Your Spouse.
The first step is to file an Application for Entry of Default with the Clerk of the Court. The Application for Entry Default advises the Clerk that the 20-day deadline has passed without the defendant or the defendant’s attorney filing an answer to the complaint.
The Clerk will wait seven days before signing the Entry of Default. Once the Clerk signs the Entry of Default, your lawyer will send a copy to your spouse. The Notice of the Entry of Default gives your Spouse one more chance to answer the Complaint.
2. File a Motion for Entry of Default Judgment.
If your spouse does not file an answer to the complaint, despite receiving a copy of the Entry of Default, the next step is to file a motion for an entry of a default judgment and decree of divorce with a request for the judge to schedule a hearing to approve the divorce. Typically, your lawyer will file all of the final court documents with the motion for entry of default judgment.
If there are no children, your lawyer will submit a list of property and debts showing how you are asking the court to divide them between the parties. If there are minor children, your lawyer will submit the custody and child support orders, which you are requesting the judge to approve. Finally, the lawyer will submit the findings and decree of divorce.
3. Attend the Default Hearing and Ask the Judge to Grant the Divorce.
After receiving the motion and final court documents, the judge’s assistant will schedule a default hearing. At the hearing, the judge will ask you questions about the complaint and the property division.
Also, if there are children, the judge will ask you questions about custody and child support orders. If the judge is satisfied that the property division and child custody and support orders meet the requirements of Alaska law, the court will sign the final documents and court orders.
Post-Divorce Decree Stalling Tactics
Once your divorce is final, you will probably breathe a sigh of relief. After all, you think, your divorce is final. In the majority of cases, this is correct. But not always. Here are a couple of post-divorce tactics your ex-spouse may attempt to use against you.
1. Refusing to follow the final decree of divorce.
Your spouse could continue to be obstructive even after the divorce is final. For example, your spouse may refuse to sign quitclaim deeds or vehicle titles over to you. Your spouse may fail to pay court-ordered child support. However, if this were to occur, you could go back to court to seek enforcement of the final divorce decree and a court order awarding you attorney’s fees.
2. Attempting to have the final divorce set aside.
The civil rules allow a party to file a motion for an order setting aside a final judgment, including a divorce decree. The grounds for setting aside a judgment are quite limited. After all, what is the point of a final judgment if a party can go back to court after-the-fact? Nonetheless, your ex-spouse spouse could file a motion asking the court to set aside the divorce. Even though getting the decree set aside is an uphill battle for your ex-spouse, it is not impossible. But your spouse will have the burden of establishing extraordinary circumstances (kidnapped by aliens?) to justify reopening your divorce case.
I have had this happen only once in 25 years. Ultimately, the judge refused to set aside the default judgment but only after we had a second hearing. At the hearing, we convinced the judge that there was no good reason to reopen the case since the property division, child custody, and child support orders met the requirements of Alaska law.
The Take Away – The Law is On Your Side and You Will Get Your Divorce
You may be surprised to find the divorce process more challenging than you expected it to be even without the participation of your spouse. However, under Alaska law, you are legally entitled to get a divorce without your spouse’s consent. If you find yourself in a situation where you have filed a divorce action and your spouse will not answer the complaint or respond to your lawyer, getting a default divorce judgment is the best (and perhaps only) move you can make to get a divorce.