Divorce is difficult and painful even when both spouses agree that it’s the best thing to do.
But what happens when only one partner wants to end a marriage? Can one spouse stop the other from obtaining a divorce?
First of all, it’s essential to know that if you have reached the difficult decision that you need a divorce, a divorce will be granted. Your spouse cannot prevent it, nor will the state force you to stay in your marriage.
However, there are complications and challenges, and the process can take more time when one person has made up their mind to divorce, and the other resists or still wants to work on the marriage.
In some cases, an uncooperative spouse may refuse to be served or won’t sign the papers, though that will only delay the inevitable.
A spouse can also dispute one or more aspects of the divorce petition, from custody and parenting arrangements to property division and alimony, which is considered a contested divorce. (Note that a contested divorce can happen in various circumstances, not only when one person doesn’t want to end the marriage).
What are the steps you should take if you’ve decided to move ahead with a divorce despite your partner’s objections?
Talk
If you have truly made up your mind that there’s no way to heal the marriage, start with an honest conversation. Explain that it has reached a point where divorce is unavoidable. Assure your partner that you have considered this very carefully. Be clear, firm, calm, and compassionate. Remember that as the party seeking the divorce, you’re much further along in your journey of acceptance.
It can be helpful to have a family therapist present. Even if you’re not there to work on the marriage, a counselor can provide a neutral, safe space for the discussion and help your husband or wife process their emotions and come to terms with what is happening.
Put Family First
Assure your spouse that a peaceful divorce agreement is far better for the kids.
Though some people feel it is always best to “stay together for the children,” several studies have shown divorce itself isn’t the most harmful to children, but the level of discord they encounter in the home. In other words, as Psychology Today explains, “It is the conflict that is damaging, whether you are married or divorced.”
A long, drawn-out process and a bitter court battle will likely be much more complex and distressing for the family than two rational, mature adults coming to a swift and reasonable resolution.
Even in a contested case, try mediation
Litigation is lengthy and expensive, and going to court will mean you spend much more on attorney’s fees, consultants, expert witnesses, and so forth. Appeal to your partner’s reason. If you can agree on at least most of the issues in your divorce, you can save yourself money, time, and a lot of stress.
When it’s time to file
In a no-fault divorce state such as California, you do not need to prove grounds for seeking a divorce. And despite what we often see in movies and media, you can end your marriage without drama surrounding whether your spouse “signs the divorce papers.”
First, you must file your petition with the court. Next, you or an approved third party (friend or family 18+ years of age or a sheriff, or process server) must serve your spouse the papers, and the spouse (or the server, if the spouse resists), must sign a proof of service.
The non-filing spouse then has 30 days to respond. If they file a response arguing terms of custody, asset division, etc., you will be in a contested divorce and must negotiate to settle. If you cannot agree, you will have to go to trial. In some cases, you may also opt for a divisible divorce, in which you settle some issues and resolve others in court.
If the non-filing spouse refuses to sign a proof of service and ignores the petition, the court will grant the petitioner a default divorce, considered uncontested. If you are the non-filing spouse, beware of choosing to ignore your partner’s petition, as you are effectively accepting their terms. A judge will finalize the division of assets and property, custody, support, and so forth, but providing the terms of the original petition met the state’s requirements, the court will typically agree to them, and the marriage will be over.
If you or your spouse wants a divorce against the other’s wishes, it’s vital to seek the counsel of an experienced family law professional. The attorneys at SFLG try to resolve every case without litigation, yet we realize an out-of-court resolution is not always possible. As formidable trial lawyers, we will litigate if faced with a bad faith offer. Whichever course your family law matter takes, Schoenberg Family Law Group, P.C., will treat you with respect, compassion, and honesty.
by Debra Schoenberg
