Will the divorce go through if my husband is in jail in another state and refuses to sign the papers?

UPDATED: Oct 11, 2011

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Will the divorce go through if my husband is in jail in another state and refuses to sign the papers?

He left me after 3 years and moved to another state to meet a girl he met on-line. He has since been jailed for some serious sexual crimes against a minor. We have a 4 year-old daughter together who is with me. He was served by the sheriff’s deputy at the jail but he refuses to sign it. He sent the papers back to me today.

Asked on October 11, 2011 under Family Law, California


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

You can get a divorce whether or not your husband consents to it. While a spouse can refuse to sign divorce papers, all this really does is delay the inevitable; a "divorce by default" can be obtained.

To begin divorce proceedings, you must file a petition in the court that has jurisdiction over the marriage. Once this has been done the petition is served to the other spouse. The other spouse becomes the "respondent"; the filing spouse becomes the "petitioner." Typically, the respondent has 20-30 days to provide a response. If the respondent fails to answer the petition within the time given, the petitioner may file a notice of "default" with the court.

A copy of the petitioner's application for a default must be served on the respondent.After the default notice has been served, the respondent typically has several weeks has to file a response. If the respondent does not answer to the court within the time allowed, the petitioner then appears before the court in order for the court to make a decision as to whether or not to grant the divorce. The judge will base the ruling solely on the evidence presented by the petitioner. At this point the court generally grants a divorce of the terms that the petitioner has requested.

Note: The respondent has the right to ask the court to "vacate" (i.e. undo) the order but there is a strict requirements for doing so. If those requirements are not met, then the decree will stand.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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