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Can I obtain a divorce if my spouse refuses to sign?

By Atty. Kenneth Reyes

There seems to be a misconception in the general public that you can only obtain a divorce in California if your spouse will sign the divorce papers.  I get this question a lot from our family law clients.  The fact is that California is a no fault state and you do not need your spouse’s signature in order to get a divorce.  What is more important is being able to properly serve your spouse with the divorce petition and satisfy the jurisdictional requirement of the Court by showing that either you or your spouse resided in the State for at least 6 months prior to filing the petition and in the County for 3 months prior to filing the petition.

When you file a divorce petition, you have to serve your spouse with the summons and petition.  Your spouse then has 30 days to file a response after being served with a divorce petition.  If your spouse fails to file and serve you with a response, you can file a request for default against your spouse after 30 days.  You can also file a proposed judgment for the court to approve.  The default procedure can be done even if there are issues of property division, custody, visitation, and support.  However, the Court will still review your proposed judgment and property division to make sure it conforms to the policy towards equal division of community property.  Meaning, you have to propose a division of community property that is pretty much equal between the spouses.  If your proposed property division is one sided such as distributing all community property to you and giving all the community debts to your spouse, the Court would probably not grant your judgment.  The Court would probably set a hearing for you to explain why this is an equal division of community property.

The only time you may need your spouse’s signature is if your spouse files a response to your divorce petition.  This is called “contesting” the divorce.  If your divorce is contested by your spouse, you can resolve the case either by “settlement” or by “trial.”  However, you do not have to settle all the issues in the case at once.  Under the concept of divisible divorce, you can settle some of the issues and set the other issues which you and your spouse cannot agree on for trial.  Our office try to resolve cases through settlement because it is more cost effective and the parties are usually happier with the outcome.  In that situation, the parties may avoid the cost and uncertainty of going to trial by executing what is called a stipulated judgment which is in essence an agreement as to all the issues in the divorce case.

For issues which you and your spouse cannot agree on, you will have to go through the litigation process which involves obtaining discovery, exchanging declarations of disclosures, and preparing the case for trial.  Ultimately, you will obtain your divorce at trial in addition to adjudication of the distribution of community assets and debts amongst other issues.  It is in the best interest of the party to retain the representation of competent counsel who will assert his or her rights under the family code.

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Attorney Kenneth Ursua Reyes is a Certified Family Law Specialist.  He was President of the Philippine American Bar Association.  He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association.  He is a graduate of Southwestern University Law School in Los Angeles and California State University, San Bernardino School of Business Administration.  He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 700, Los Angeles, CA, 90010.  Tel. (213) 388-1611 or e-mail kureyeslaw@aol.com.

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