If you are currently in a situation where you want a divorce, but your spouse does not, you are not alone.  It is not uncommon that a spouse may be in denial.  They may try to convince you to do marriage counseling, give them additional time, or that they will change.  Perhaps you’ve already tried but you’ve already moved on.  Often times the other spouse just does not want to accept that. California is a no fault state, so the judge will not care if your spouse does not want the divorce. 

Can I still start the process?

The answer is yes.  You may serve your spouse and they can choose to not participate. In these situations, you may request to enter a default judgment after a certain number of days of when the petition and summons were served. However, if the petition is not completed correctly or is not properly served, it can result in a default judgment being rejected.  A judgment or default judgment can also be set aside if it’s done incorrectly. Your spouse will have the ability to file a motion to have the judgment set aside if the Court has proper grounds to do so. In other words, your spouse could potentially undo the divorce judgment that you had received.

This is one reason why it can be vital to have an attorney’s representation when you are attempting to get a default judgment.

What do I do if my spouse is uncooperative in regards to our children?

Child custody and visitation is either agreed upon by the parties or decided upon by the Court.  If and when the Court has to make the decision, they will rule in what is in the best interest of the children. If your spouse is not cooperating or agreeing with what you are proposing to them, you can file a Request for Order with the Court, which places the issue in front of a judge.

What do I do if my spouse is refusing to move out?

It can be hard for a spouse to leave their home.  You may hear “This is my house too. I can stay here as long as I want.” At some point, the court is going to divide your assets.  This often includes your home.  It is usually resolved by one spouse buying out the other or the home being sold. If your spouse is being uncooperative, it will eventually end up in front of a judge.  In that type of situation, the judge will usually order the home sold unless there is a good reason for them to order a buyout.  These are other possible scenarios, so it is important that you discuss your options with an attorney.

My spouse is telling me that they will make the divorce process as long and as expensive for me as possible.  Can he or she do that?

The answer to that questions is yes, however, there may be consequences.  Family Code Section 271 states: “…the court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.  An award of attorney’s fees and costs pursuant to this section is in the nature of a sanction…”  In summary, your spouse may be intending to make the process costlier for you, but they may end up being the one that has to pay for it. 

Reconciliation is always a preferred solution to marital difficulties. You should at least make a good faith effort to reconcile your differences. However, if this option is not possible, and you wish to proceed with a Divorce, please give us a call.  We are here to answer any questions and offer free consultations.

Disclaimer: Nothing contained in this article is intended to be legal advice nor should it be construed as such.

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