What do you do if your spouse has skipped town and you want to divorce that spouse? That is more common than you might expect. Spouses move and cut off contact all the time. A divorce proceeding might seem expensive so they may just avoid dealing with it.
Spouses also wind up in jail or otherwise unable to be involved. If you find yourself wanting to divorce an absent spouse, you need to get familiar with the default divorce definition.
Typical divorce requirements
Divorces are a lot like any other court case. You are asking the court to grant you some sort of relief, and that requires you to show certain things are true. Until recent decades, a spouse that wanted to split up would have to prove that the other spouse did something wrong. This was called a “fault” divorce, and common faults include things like adultery and abuse.
Today, “no-fault” divorces are relatively simple. The person seeking a divorce must typically prove their marriage has suffered an “irretrievable breakdown” or that they have “irreconcilable differences.” That is not a very tough burden, though.
In reality, if a couple wants to split up in modern America the court is going to let them. In many states couples can even petition jointly for divorce.
What is a default divorce?
A default divorce is a proceeding where one spouse fails to show up. The court will basically just accept one spouse’s claims that the marriage should be dissolved. You may need to file a motion for default divorce or a request to enter default divorce. Then the court may hold a default divorce hearing.
This will usually just be to establish that the other spouse really did get notice of the divorce and then decided not to show up.
Some states, like Michigan, impose waiting periods that prevent a default divorce from being issued too quickly (60 days in that state, for example). These periods can help a spouse that is struggling to respond to divorce proceedings to have time to get a lawyer or otherwise participate in the process.
Default divorces can be limited
Getting the actual divorce decree is relatively easy, meaning just the paper saying that the marriage is terminated. A court may be wary of granting property division or making custody decisions with one spouse absent, though.
Courts may also lack power over an absent spouse. For example, if a husband lives in another county the local court may not be able to order him to explain what property he owns and then order him to share it.
Children actually have a very specific federal law called the Uniform Child Custody Jurisdiction and Enforcement Act that explains what courts should make decisions over child custody. The child’s home state has exclusive and continuing jurisdiction over the child. That means if a couple is living in Nebraska with their child, and the husband moves to Nevada and seeks a default divorce, the Nevada court should refuse to address child custody issues because Nebraska courts should make those decisions.