California: ‘What if spouse refuses to sign?’

First in an occasional California-specific series about divorce, from actual questions we receive

m

Q: What happens if my spouse won’t agree to sign the papers?

A: In a few words, he or she loses. By default.

Requirements

The thing is, certain requirements must be met, and all your paperwork must be in order. If your spouse (or the spouse’s attorney) realizes your petition or notice of service is inadequate, the strategy may be to “drag their feet” until you perfect your filing, because if your paperwork is not in order the court may dismiss the case. The easiest way to ensure your paperwork is in order is to hire a qualified, experienced divorce attorney. Following are the nuts and bolts of California requirements.

Residency

From the California Courts on residency requirements:

For married persons to get a divorce:
You MUST meet California’s residency requirements. Either you or your spouse must have lived in:

California for the last 6 months, AND

The county where you plan to file the divorce for the last 3 months.

If you and your spouse have lived in California for at least 6 months but in different counties for at least 3 months, you can file in either county.

If you do not meet the residency requirement, you can still file for a legal separation. Once enough time has passed so that you meet the residency requirement for a divorce, you may file an “amended petition” and ask the court for a divorce.

For domestic partners to get a divorce:
If your domestic partnership is registered in California, you have automatically agreed to the jurisdiction of the California courts to end your domestic partnerships even if you move away or have never lived in California. So you do NOT need to meet the residency requirements that married couples must meet.

If your domestic partnership was NOT registered in California, you or your domestic partner must have lived in:

California for the last 6 months, AND

The county where you plan to file the divorce for the last 3 months.

If you and your domestic partner do not live in California, when you file to end your domestic partnership in California, the court may not be able to make orders about other issues like property and debt, partner support, or your children. If this is your situation, talk to a lawyer with experience in domestic partnership laws.

Initiating the action, then following up

The first thing is make sure all the correct forms are completed and filed with the proper court. Second, your spouse must be properly served, that is, provided copies of the paperwork via a legal method such that the spouse can not later say he or she “never received notification”–that’s the crucial test allowing the court to enter a default judgment in your favor. Third, the follow-up papers must be filed correctly:

Click here for an interactive procedural to go through the five major steps (includes a link to ensure you file in the proper venue); click on Step 1, Step 2, and so on.

Two things to remember

First, if your paperwork is in order and your spouse was properly served, the spouse–for whatever reason–may simply be done/worn out/sick of the whole thing…and therefore chooses not to contest the divorce.

Second, although it is unlikely, if the spouse acts quickly enough, he or she could get a good lawyer and challenge the default judgment by filing a motion that asks the court to vacate–or set aside–the default judgment. If that action prevails, it will be as though the divorce never started, and you will have to start all over again. To repeat, this is highly unlikely but is something to know. The best answer is to take the court’s advice and retain a compatible, experienced attorney.

Free evaluation

No matter your marital situation, we can help. If you’re ready to begin the search for a compatible, well trained, experienced divorce attorney, you can start with our free case evaluation. If you need more information, please browse our site, using the tabs at the top of the page.