What Happens if Your Spouse Isn’t Willing to Give You a Divorce?

Going through a divorce is stressful all on its own. But what can make matters even worse? A spouse who is unwilling to give you the divorce. We see it play out in dramatic fashion in the news and on television drama all the time, particularly when there are huge celebrities involved in a divorce battle. One spouse emphatically proclaims, “I want a divorce,” while the other spouse equally states, “I’m not signing any divorce papers.”  While your situation may not be as dramatic as that, the question has undoubtedly played out in your mind — what are my options if my spouse decides not to cooperate?

California Divorces Can Proceed and Be Finalized Even if a Spouse Won’t Cooperate

Our Irvine divorce attorney knows that there are times when one spouse simply does not want to get a divorce for whatever reason. Perhaps they think things can be worked out and a divorce would be too extreme at the time, or maybe there are children involved and a divorce would not be a good option for the family as a whole. Divorce without obtaining the cooperation of a spouse is not uncommon, especially if one spouse wants to make things difficult for the other.

In terms of a spouse being “uncooperative,” that generally means that he or she either doesn’t want a divorce, is unwilling to acknowledge/sign proof of service documents and/or the spouse disagrees as to the issues involved. Still, even with all that, California allows divorces to be finalized.

A Note About Proof of Service in California

Serving a spouse with a petition for divorce is the first step in starting the divorce process. California courts require proof of that service (i.e., formal notification that a petition has been filed). Service must be made; however, there is no need for your soon-to-be ex to physically sign anything. An individual can either have a family member, a process server or a sheriff serve the spouse, and they will be the ones to attest to having served the spouse.

The Divorce Will Proceed as Normal Through the Courts

Once the petitioning spouse files for divorce and serves the spouse, the served spouse will have 30 days in which to respond. He or she may choose not to respond at all to the papers, and if that occurs, once the 30 days have passed, the petitioning spouse can then file for a “default” divorce. Any issues that need to be worked out between the parties will be resolved by the petitioner and the judge, during which time a decision will be made based on what’s reasonable. Possible issues that may play a role include support and child custody issues (if there are children involved). In such instances, the petitioning spouse can file a Request for Order to seek a temporary order, and then ask for a trial date, during which time, the judge will rule on all issues involved. If no issues exist, the petitioning spouse may be able to avoid appearing in court totally and the divorce can be finalized accordingly.

Default Divorces in California – Our Irvine Divorce Attorney Explains

As discussed above, a default divorce may be granted in cases in which the served spouse fails to respond to the divorce paperwork within the 30-day timeframe allowed by law. Contrary to what some may think, default divorces can be a good thing and are quite common in California, as it generally moves the divorce process along fairly quickly and with minimal expense.

When there are no issues, default divorces are typically finalized (without the need for a court appearance) within six months and one day from the date of service. If there are issues involved, the petitioning spouse (not the served spouse) will get a hearing date and the judge will rule based on the petitioner’s statements and testimony.

We should note, however, that if the served spouse does decide to respond to the divorce petition, the action then becomes a contested divorce, and many of those types of divorces end in trial. Still, if the contesting spouse responds and agrees to resolve the issues presented in the petition, a “stipulated judgment” can be drafted. Your Irvine divorce attorney should prepare this document to ensure that all issues have been handled and adequately addressed so that no appearance in court is needed.

If the Served Spouse Responds in Disagreement With the Request, the Action Becomes a Contested Divorce

Divorces can become contested divorces when one spouse disagrees with what the other spouse is seeking from the divorce (or there may be partial disagreement). There are also occasions in which the spouses may agree on some issues and disagree on others. If that is the case, you may choose to draft the agreement on those issues that can be resolved and let the judge resolve the remaining issues.

Reaching an agreement on some or all of the issues on your own can save a great deal of time, money and emotional frustration that often accompanies a divorce. That said, if you find yourself in a contested divorce, you may want to consider speaking to a mediator.

In most California courts, if there are unresolved issues for which an agreement cannot be reached, one spouse will need to file and serve a document asking for a trial date. The court will likely require the parties to go to what’s commonly referred to as a “settlement conference” prior to the trial. If you and your pending ex decide that you want to assist in settling your case, a request can be made to participate in a mediation program (the court clerk or family law facilitator can advise if one exists in your area).

Seek Legal Guidance From Our Irvine Divorce Attorney Today

Whether you’re dealing with an uncooperative spouse or a spouse who is outright contesting the divorce, help is available. Some of the issues involved in a divorce can be a bit confusing and tricky, so it’s important to have a skilled Irvine divorce attorney by your side to guide you through the process. Contact our office today.

Frequently Asked Questions

Can a spouse prevent a divorce in California?

No. California is a no-fault state, and one spouse’s assertion of irreconcilable differences is sufficient. The other spouse cannot block the dissolution by refusing to consent, by declining to sign anything, or by objecting in court. What an uncooperative spouse can do is make the process slower and more expensive, which is a real cost but a different problem from preventing the divorce itself.

What happens if a spouse refuses to respond to the petition?

The case proceeds by default. Once the spouse has been properly served and the statutory response period has passed without a response, the petitioning spouse may seek a default judgment. The important limitation is that the court can generally only award what was requested in the petition, so the petition’s requests as to property, support, and custody effectively define the ceiling. That makes careful drafting of the petition considerably more important in a case likely to go by default.

What if a spouse cannot be located to be served?

There are alternatives to personal service. A court can authorize service by publication or by posting where the spouse’s whereabouts are genuinely unknown, but only after a showing of diligent efforts to locate them, which typically means documented searches of last known addresses, employers, relatives, and public records. Service on a spouse who is avoiding process can also be accomplished by substituted service at a residence or workplace. The procedural requirements are strict, because a defective service can undo a judgment later.

How is a spouse who participates but stonewalls handled?

With motions and the court’s enforcement tools rather than with negotiation. A spouse who will not produce financial records faces motions to compel with monetary sanctions, orders deeming matters admitted, evidentiary preclusion, and attorney fee awards for the cost of obtaining what should have been produced. Subpoenas to banks, employers, and accountants bypass the party entirely. Where the obstruction concerns an undisclosed asset, the fiduciary duty between spouses exposes the withholding party to losing their share of it.