I Want a Divorce But My Husband Doesn't

by B. Robert Farzad

"I want a divorce but my husband doesn't. I'm so frustrated. What can I do?"

Many wives every day face this question. They want a divorce because they know the marriage is over. Their husband however is in denial. That denial may be because the husband believes additional time, marriage counseling or something else may help the marriage. The husband may simply not accept his wife has moved on.

This article only applies to California divorces. We will focus on three main issues when you want a divorce and your husband doesn't - child custody, child support, spousal support and the family residence.

We also encourage you to read our comprehensive guide on the California divorce process to get a much better understanding of how the process works.

I want a divorce but my husband doesn't. How can I get the process started?

Every divorce in California starts the same way. The spouse who initiates the divorce files a summons and petition for dissolution of marriage. Depending on the county in California, there are other forms that go with it. Once the petition is filed, it then must be served on the husband. Service must be by personal delivery to the husband unless the situation falls into a few of the limited exceptions. An attorney's advice is very important during this process, both to ensure the summons, petition and initial filing paperwork is completed correctly and to ensure proper service.

My husband stated he will not respond to the divorce and will not participate in the process. Can he do that?

Yes. A person served with a divorce petition is not required to participate in the process. In such a situation, the wife can take the husband's default after the requisite number of days pass after the summons and petition are served. It is easy to screw this up by not completing the petition correctly and therefore not being able to get a proper default and default judgment or failing to serve it properly and having the default rejected.

Failing to complete the paperwork properly, even if the court signs the judgment, can also cause a default or judgment to be set aside later if the husband changes his mind, files a proper motion to set it aside, has the proper grounds for the set aside and if the court grants it. That means if you do not handle this properly, the husband can potentially undo the divorce judgment you received.

Do you see why an attorney's representation is important?

I expect my husband to be very difficult regarding the children. What can I do?

Child custody and visitation is either worked out between the parents or decided by the court. The court focuses on the children's best interest when determining the proper order.

Child custody includes legal custody, physical custody and under the physical custody label, specific parenting time (sometimes called visitation).

If your husband does not want a divorce, is difficult and will not cooperate to come up with a custody agreement, you can file a request for order and put the issue in front of the judge for a decision.

The judge does not care your husband does not want a divorce. California is a no-fault state and if your husband intends to be difficult by not negotiating in good faith, the judge will make the decision and your husband's conduct will reflect poorly on him.

Ultimately, if your husband continues to be difficult, he will be, for lack of a better term, dragged through the process and the court will make the appropriate orders.

Because my husband does not want a divorce, he refuses to move out of the house and states if I move out of the house, he will consider it an abandonment of the children. What can I do?

If you have children, you may emotionally have a harder time moving out of the house, especially when you do not have a clear agreement and court order on custody and parenting time. In such situations, what you have to decide with the help of an attorney is whether it makes sense to move out and take the children with you or move out and leave the children at the house until you get a custody order. There is no one-size-fits-all decision here. You will need the advice of an attorney.

Whether your husband has committed domestic violence against you or is otherwise a threat to harm you is also an important consideration. You may be entitled to obtain a restraining order against him or other emergency orders if you and/or the children are in danger.

If there is no danger to you or the children and you don't have an urgent need to move out, one approach that usually works well is file a divorce petition, serve it and then file a request for order to ask the court for temporary custody and parenting time orders to go into effect as soon as you move out. That way, you have custody orders in place when you move out and your husband will not be able to use the children as leverage like he has threatened to do. Because if he does, he may be in violation of the court order.

My husband who does not want a divorce tells me there is no way I can make him move out and he will stay at the house for as long as he wants. Is that true?

Another common threat husbands make is to threaten a refusal to move out. The threat goes something like this: "I don't care you are filing for divorce. I am not moving out and you can't make me move out. I will stay here as long as I want." Wives of course wonder if that is really true and whether their husband who does not want the divorce will end up staying at the house indefinitely.

The answer is no. At some point, the California court will have to divide the marriage's assets. The house is an asset. That is typically through either the home's sale or one spouse buying the other one out. While your husband can be difficult and may cause the process to go longer than it should, at some point this issue will end up in front of the judge. That depends also on you and how hard you push this issue to court. In such a situation the judge will typically order the sale of the home unless there's a good reason to instead order a buyout. These are not the only two possible scenarios.

Are all these empty threats?

I know wives worry about this quite a bit but the reality is these types of threats are usually empty ones and once reality sets in that the divorce is happening (whether the husband likes it or not), they start to get with the program even though they do so begrudgingly. Does that always happen? No. Some people have to learn the hard way.

Since my husband does not want a divorce, he has told me he will make this process as hard and expensive as possible for me. Can he do that?

The short answer is yes, your husband can make this process go longer than it should and he can make it more expensive. However, the good news is there is generally serious consequences that go with that.

Family Code 271states, in part:

…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…

Family Code 271 is often used in situations where one spouse does exactly what I have written above and causes the divorce to be more expensive and more time-consuming that it should be. Few things get a person's attention more than hitting them in the pocketbook and your husband may have a very unpleasant experience if he really intends to follow through on that threat.

I am ready to proceed forward with the divorce. Can you help?

When you are ready to proceed forward with the divorce, contact our experienced California family law attorneys. We offer an affordable strategy session and are ready to help.

Related reading: Check out our article on the circumstances that allow you to kick your husband or wife out of the house.

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