Why Your Attorney Can’t Magically Make Your Spouse Disappear: Due Process and the Realities of Divorce

February 19, 2024

Note: This blog post is for informational purposes only and does not constitute legal advice. Please consult with an attorney for legal guidance specific to your situation


Divorce is rarely a smooth ride. Emotions run high, disagreements flare, and navigating the legal complexities feels like walking a tightrope. In the midst of this emotional turmoil, it’s tempting to believe your attorney can wave a magic wand and make your spouse vanish from the process. Unfortunately, reality doesn’t work that way. Due process, a cornerstone of our legal system, ensures that even in the emotionally charged arena of divorce, your estranged spouse has rights and protections. Let’s explore why your attorney can’t simply make your spouse disappear and the importance of due process in safeguarding fair outcomes.


The Power of Due Process: What It Means in Divorce


Due process, enshrined in the Fifth and Fourteenth Amendments of the U.S. Constitution, guarantees basic fairness in legal proceedings. Applied to divorce, it means your spouse has the right to:


  • Knowyou want to be divorced: This may seem obvious, but it’s crucial. Your spouse has the right to be formally notified of the divorce proceedings through a legal document called a petition or summons. This document outlines the grounds for divorce and initiates the legal process. When I draft an uncontested divorce, I follow it up with the soon-to-be-ex’es acknowledgment that they have read the paperwork and signed everything.
  • Respond to the allegations: Your spouse has the right to contest the divorce and present their side of the story. This ensures a fair and balanced resolution, not just a one-sided narrative. A good divorce gives both people the opportunity to have their day. When I handle cases, I draft and have the soon-to-be-ex sign everything so that your case has both sides presented.
  • Have legal representation: Your spouse has the right to an attorney who can advise them on their legal rights, negotiate on their behalf, and represent them in court if necessary. This level playing field ensures both parties have equal access to the legal system. Some people choose to not hire an attorney, and that is OK too. But they have to have the right to do so. One will not be given to them for free, unlike in criminal cases.
  • Participate in the proceedings: Your spouse has the right to attend hearings, present evidence, and be heard by the court. This ensures transparency and allows them to advocate for their interests in a contested case. However, in uncontested divorces in this area (St. Clair & Madison County, IL), your spouse waives this right to have a hearing – and often the Judge signs the paperwork you have both approved with no court hearing. But I make sure that everyone knows I am sending or taking the paperwork to the Judge before I do.
  • Appeal the decision: If your spouse disagrees with the court’s decision, they have the right to appeal it within a specific timeframe. This safeguard ensures potential errors are corrected, and justice is served.


Why Your Attorney Can’t Bypass Due Process:


Now, you might be thinking, “But what if my spouse is unreasonable? What if they’re just trying to drag the process out or make things difficult?” While understandable, circumventing due process isn’t the answer. Here’s why:

  • Ethical obligations: Attorneys are bound by ethical codes that uphold due process. Bypassing these codes could result in disciplinary action or even disbarment. In other words, no attorney is going to run up to the judge to get them to do something without notifying the other side at the risk of losing their ability to practice law. There is an exception to this, which are orders of protection and other temporary restraining orders. In such cases, the attorney has to tread carefully and outline the reasons why the other side does not have notice of a hearing. This is not an area of law I practice any longer, so it is safe to say I do not approach judges in any matters without the other side knowing.
  • Unenforceable agreements: Any agreement reached without informing your spouse or violating their due process rights could be deemed invalid by the court, rendering it unenforceable. OUCH. Why would you want to risk that? It would be a waste of time, money and energy.
  • Risk of unfair outcomes: Skipping due process could lead to an unfair outcome that favors one party over the other. This can be emotionally and financially damaging in the long run.
    Future complications: Sidestepping due process can create legal complications later, such as challenges to parenting arrangements or property division agreements.

Remember, divorce is a process, not a battle. By understanding and respecting due process, I can navigate the legal system with fairness and dignity, paving the way for a smoother resolution and a brighter future for both of you. If you are ready to move on from your marriage and have or can reach agreements with your soon-to-be-ex, contact me or call my office. I will work hard to make sure that the process is fair, that due process is met, and that I can reach an outcome you can live with.