What if My Spouse Wants a Divorce and I Don’t?

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Most divorce guides operate on the assumption that both parties want to end the marriage. But what happens if only one party wants to get divorced? Is it possible or even legal for your spouse to force you to sign divorce papers in Utah? Does your spouse need to get your consent? Are there any alternatives you can compromise on? In this blog post, Salt Lake City divorce attorney Darwin Overson of Overson Law, PLLC will explain what can happen if your spouse wants a divorce and you don’t.

Getting Divorced Without Mutual Consent in Utah

Unfortunately, there is little you can do if your spouse wants to file for divorce. You cannot prevent your spouse from serving you with papers, nor can you stop the divorce from happening by ignoring the papers with which you have been served. The law does not aim to keep people locked into marriages they no longer want to be in. However, a divorce that is not by mutual agreement may be more complicated.

Ignoring divorce papers will actually accelerate the proceedings. If you fail to respond within the allotted time — 21 days for Utah residents, 30 days for individuals who reside out-of-state — the judge may grant your spouse a “default judgment,” at which point your options for recourse will become extremely limited.

However, certain types of military personnel are exempt from the standard default judgment rules and proceedings under the Servicemembers Civil Relief Act. The Act extends to active-duty military personnel in the following branches of the U.S. Armed Forces:

  • Army
  • Air Force
  • Coast Guard
  • Marine Corps
  • Navy

Reasons Your Spouse May Want a Divorce in Utah

Divorces can happen for any number of reasons. Sometimes a specific incident between spouses is what sparks the divorce. In many cases, people just grow apart, and it is not really anyone’s fault. Under § 30-3-1(3) of the Utah Code, the law provides ten different grounds for a divorce. In the past, a divorce could only be granted if one spouse were considered at fault. However, Utah and many other states have adopted no-fault grounds for divorce. Now, spouses are not required to prove fault to be granted a divorce. Under the law, possible grounds for divorce include…

  • Impotency at the time of marriage
  • Adultery subsequent to marriage
  • Willful desertion for more than one year
  • Willful neglect
  • Drunkenness
  • Conviction of a felony
  • Cruel treatment with bodily harm or severe mental stress
  • Irreconcilable differences
  • Incurable insanity
  • Separation for at least three consecutive years without cohabitation

It is far more common today for a spouse to claim irreconcilable differences as the grounds for their divorce because it does not require a showing of fault. However, the other grounds for divorce come with their own set of rules and requirements that must be proven for the divorce to be granted.

If your spouse initiates a divorce on the grounds that you committed adultery during the marriage, you could contest the divorce with evidence to the contrary. By showing you did not commit adultery, you can slow down divorce proceedings, but ultimately your spouse will be granted a divorce if they really want one. However, contesting allegations of fault may help you later on when property is divided between the parties.

marriage divorce separation annulment road sign

Challenging Your Spouse’s Divorce Claims in Utah

While you cannot preemptively stop your spouse from filing, you can challenge the accuracy of the assertions and demands your spouse includes on their complaint for divorce. This is called contesting the divorce. However, most people contest divorce-related issues such as child support or child custody demands — not the divorce itself.

You should also be advised that by contesting any matters pertaining to the divorce, you may be significantly lengthening the overall legal process. Needless to say, this will result in greater expense to you and your spouse. While the minimum waiting period for divorce in Utah is generally held to 90 days, contentious proceedings involving numerous disagreements may take several years to complete.

Realistically speaking, you cannot force your spouse to remain married to you if they wish to dissolve the marriage. As provided by Utah Code § 30-3-1(2), your spouse must be a Utah resident for at least three months before they will be legally able to file for divorce. This means if your spouse tries to file for divorce too soon, before the three-month time limit has passed, you may have grounds to challenge the divorce. Doing so will not totally stop the divorce, but it may buy you some time to hire your own Utah family law attorney and begin preparing your legal strategy.

Alternative Options to Divorce in Utah

If you or your spouse is unwilling or hesitant to commit to getting divorced, you may prefer to try an alternative option such as annulment or trial separation. Each can effectively end the marriage but with different legal consequences.

Annulment of the Marriage

If your case is eligible, you can have your marriage annulled rather than be granted a divorce. Your marriage must be prohibited by law and void, or voidable if the parties choose, to be eligible for an annulment. For example, incestuous marriages are illegal, considered void, and will be annulled. A marriage in which one or both spouses are under the age of 18 is not automatically void but may be voidable and annulled if the parties choose to do so. Annulment is similar to divorce in many significant ways. To provide a few examples:

  • Both begin with a formal complaint, to be served upon your spouse.
  • Both call for division of property.
  • Both address child custody and child support.
  • Both dissolve the marriage. (In fact, annulment goes even further than divorce, making it as if the marriage never existed to begin with.)

But if these approaches are so similar — with annulment arguably being even more extreme — why even consider annulment as an alternative? For many couples, it’s a matter of respecting their personal or religious beliefs. While divorce contradicts the fundamental tenets of many common religions, notably the Catholic branch of Christianity, annulment is considered acceptable and does not render the children of the marriage illegitimate. A family law attorney can help you weigh the differences between annulment and divorce.

Separation

If an annulment isn’t a good fit for your circumstances, you may wish to try a trial separation instead. In Utah, a trial separation is legally referred to as “separate maintenance.” A trial separation is precisely what it sounds like: a temporary separation period, typically up to one year in length beginning from the date of your court hearing, where you and your spouse may live apart. While you are always free to move out of your house and begin living separately, you will need to get legally separated in order to avoid having that potentially affect divorce grounds.

If your separation continues, it may eventually serve as grounds for divorce. Under Title 30 of the Utah Code (Husband and Wife), §30-3-1(3)(j) states there are legal grounds for divorce when the spouses have been legally separated for at least three consecutive years. During this time, they must not have cohabitated or lived together as a couple.

Dividing Property in a Contested Divorce in Utah

A divorce proceeding must deal with property shared between the married parties. In some states, the courts adhere to a community property rule, which means the property is divided 50/50 between the spouses. Other states, including Utah, follow a rule of equitable division. Under the rule of equitable division, the property will be divided so that it may not necessarily be equal but will be fair.

Only certain types of property are subject to equitable division in Utah. Property that the parties must divvy up is called “marital property,” while property that is not subject to division is “non-marital property.” Generally, marital property includes property that was acquired during the marriage. However, there are exceptions for property like inheritance or gifts received by one spouse during the marriage. Any property acquired before the marriage is considered non-marital and will not be subject to division.

Contesting the grounds for a divorce may not stop the divorce, but it can have a significant effect on the division of property. If your spouse proves you were at fault for something, like you cheated during the marriage or were abusive, this can be used against you when diving property. Your spouse could take a more significant portion of the property you share, including money and real property.

By explaining to the court that you do not wish to get a divorce and would instead reconcile with your spouse, you may make the court more sympathetic. If you cannot disprove the allegations of fault against you, you can at least show remorse.

Child Custody in a Contested Divorce in Utah

If you and your spouse have minor children together, the issue of custody is bound to come up in divorce proceedings. It does not matter who filed for the divorce and whether the divorce is mutual or highly contested. Child custody will be determined primarily by what is in the best interests of the child.

Children are often the reason many people want to fight a divorce. They are afraid that if the divorce is granted, they will hardly see their children anymore. Certain claims made during the divorce might be used against you during child custody arrangements if the child was involved. For example, allegations of abuse will be considered during custody arrangements if the child allegedly was abused.

Contesting the divorce will not stop the divorce. However, challenging important issues, like allegations of fault or abuse, may help you retain custody of your children. Similarly, by showing the court that you do not want a divorce and wish to remain in your spouse’s life, the court may interpret this as a strong willingness to co-parent and could help you in the custody dispute.

Get In Touch With Our Utah Divorce Attorney to Discuss Your Divorce

If you and your spouse are thinking about getting divorced in Utah, or if you need help resolving alimony, child support, or child custody dispute, please reach out to our West Valley divorce attorney. Call Overson Law, PLLC at (801) 758-2287 to set up a free consultation.