What To Do When You Want a Divorce, But Your Spouse Doesn’t
Getting a divorce in California is always a complicated legal process, and if you want to divorce but your spouse doesn’t, it’s probably going to be even more complicated. In Southern California, if you are divorcing your spouse – or if your spouse is divorcing you – you’ll need to obtain the advice and counsel of an experienced Orange County divorce attorney. A spouse can’t stop you from obtaining a divorce in California, but a stubborn and uncooperative spouse can nevertheless make a divorce quite difficult and grueling.
What should you know if you are on either side of a divorce in this state? You should know first that California is a “no-fault” divorce state. No one has to prove that a marriage partner “at fault.” Instead, either spouse may seek a divorce for “irreconcilable differences.”
The law in California requires at least one spouse to reside for at least six months in our state and for at least three months in the county where the divorce petition is filed. Divorcing spouses can expect the process to take at least six months in California, but if one spouse is persistently uncooperative, the entire legal process could take a year or more.
HOW DO YOU BEGIN THE DIVORCE PROCESS IN CALIFORNIA?
A divorce in California begins with one spouse filing a summons and petition for divorce, which is called “dissolution of marriage” under California law. In most divorces, the non-filing spouse must be personally served the divorce petition. Spouses who file for divorce must submit a preliminary financial disclosure along with the divorce petition or within sixty days. The respondent spouse also has sixty days to file a response along with his or her own preliminary financial disclosure. Exceptions to the sixty-day limit are almost never permitted.
If you file a divorce petition and your spouse refuses to respond or even to acknowledge the divorce filing, that is his or her right. If you choose not to respond to your spouse’s petition for divorce, the divorce may be considered a “default,” and you may lose your right to have any say in the divorce procedure or the negotiations regarding children and property. Before you make that choice, however, it is imperative to have the advice of an experienced Orange County divorce attorney.
Most of us, of course, want to be heard when determinations are being made that will impact our lives and families for years to come. You should understand that choosing not to respond to a divorce petition is itself a response, and you’ll be choosing to let other people make decisions about your life.
You will have to reach some kind of divorce agreement with your ex at some point, and the sooner you start to work on that agreement, the more influence you’ll have on its final terms and conditions. Let an experienced divorce lawyer help you from the very beginning.
WHAT CAN HAPPEN IF A DIVORCING PARENT WON’T COOPERATE?
For divorcing spouses who are parents, if one spouse does not want to divorce, and if that spouse refuses to discuss custody and child support, those decisions will then be made by a judge. That judge will probably take a spouse’s refusal to cooperate into account when making child custody and child support decisions. Under California law, any judicial decision that involves a child requires to the court to make the child’s “best interests” the leading consideration.
If your spouse is demanding that you move out of the house, speak first with your divorce attorney. Every situation, of course, will be different, but as a general rule of thumb, you shouldn’t leave the house unless your spouse forces you out with a protective order.
If the lease or mortgage has your name on it, nothing requires you to leave, and you shouldn’t. Especially when you are a parent, moving out looks like you are abandoning the family, and your spouse might even make that claim if you leave.
However, if your spouse has committed domestic violence against you or your children, ask your attorney to help you obtain a restraining order at once. If there is no threat to you or your children and you do not urgently need to move out of the house, as soon as the divorce petition is filed and served, consider filing a request for temporary custody and parenting time orders. That way – no matter what else happens – you’ll have your child or children with you while the divorce is pending.
At some point, of course, the house will have to be divided, and that will be much easier if you and your spouse can agree on the division of your assets and properties. If you choose not to participate in the divorce or in any negotiations regarding property and assets, the court will decide the fate of the family home, and the court could order the home sold or could order one spouse to “buy out’ the other spouse’s half of the home.
CAN AN UNCOOPERATIVE SPOUSE BE LEGALLY PENALIZED?
When one spouse makes the divorce process exceedingly difficult, there is actually a legal remedy that a California court can impose. If one spouse is acting in good faith, and if the other spouse needlessly complicates the divorce process or the negotiations, a California court may order the uncooperative spouse to pay a considerable part of the other spouse’s attorney fees.
A California court will sometimes issue this order to induce the uncooperative spouse to stop wasting the court’s time. When a spouse requests attorney fees from the other spouse for a lack of cooperation, no demonstration of financial need is required.
When an ex-spouse continues to be non-compliant after a divorce has been finalized, a California judge may choose to hold that person in contempt of court if the non-compliance is continuing. Frankly, a contempt of court finding is rare in post-divorce disputes – most ex-spouses eventually accept the reality of divorce and finally choose compliance – but when an ex-spouse continually fails to obey court orders, contempt of court is an option the court can use.
When you seek a divorce in California, if your spouse is stubborn and uncooperative, don’t let it cause you anxiety. The law is on your side. The disputes will be resolved – one way or another – and the divorce will eventually be finalized.
It could take some time, however, and you’ll need an experienced Orange County divorce attorney who can explain each step of the process – someone who can encourage you over the weeks and months while the divorce is pending, and someone who can fight aggressively in your interests and on your behalf.