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What If One Person Doesn’t Want the Divorce?

Divorce mediator in Encinitas

By Jennifer Segura

We often get the question, “What if my spouse does not want the divorce, do I have to stay married forever?”

The short answer is “no, of course not.” But, as with everything in the law, there are no quick answers. Here is an example of a long answer to that question.

The Divorce Process

One party files for divorce (we call them the Petitioner). The Petitioner then has the other party, the Respondent, served. Then, while the petitioner would like to move forward, the Respondent stone-walls them. There is NO MOVEMENT. No response. No effort at all to move forward. What are the Petitioner’s options at this point?

  1. If the Respondent has not filed a Response within the allotted period, the Petitioner can file a default judgment against the Respondent.

    While this seems like an easy way to go if there are actual assets involved, children involved, or … they are STILL living together, this can make a default judgment very complicated and kind of… well, useless. There is not a lot that filing for default will do for you, since these other issues still must be resolved, somehow, someway. But, ultimately, you CAN still get officially divorced and leave the remaining issues “open” to be decided at a later date, if there is no movement from the other party and ending the marriage may move them towards the resolve, that it is going to happen one way or another.

  2. What if the Respondent DOES file a response… so a default judgment is not available? Much. More. Difficult.

The problem in this situation is how do you force someone to DO something they DO NOT want to do. What do you do when one person doesn’t want the divorce? Well, you can push them through the litigation process… a party who is involved in a litigated case cannot avoid the court. The Judges get upset when their time is wasted, so they will apply sanctions to the party who is not participating. That is a fine that the non-participating party has to pay for not being diligent in their court case. See, what most people do not realize, is a divorce is an actual LAWSUIT. One party is SUING the other party to dissolve their legal relationship.

So the bottom line, if you are the person who doesn’t want to get a divorce and you are trying to avoid divorcing by not participating, it will not end well. Ultimately, you will find yourself in court, being pushed to deal with the issues at hand and doing so with a very irritable judge. The last thing you want to do is to piss off a judge who is ultimately responsible for making decisions about your life going forward.

So, what is the answer?

If you do not want a divorce, but your spouse does, it is likely because it is too painful to handle the thought of being without that person. However, if a relationship has reached a point that one person wants out, likely things are going on that are making you not so happy as well. Turning that pain into rage within a courtroom does not help anyone heal through this process. However, in mediation, you are given time to speak and be listened to… by your spouse! While we are not therapists, we are here to make sure you each feel heard and get to speak your peace to help you both gather closure through this process.

We strive to give you each the opportunity to get the answers you need to make well-thought-out decisions. This is even if one person doesn’t want the divorce.  If it is going to happen regardless to which path you take, try the more peaceful way first. Give it a chance. The less attractive path is still there if you need it, but why not come into a room where you will be given respect and empathy for all of the heartaches you are going through. A place where your relationship will not be turned into a complete nightmare, and there can be a  healthier resolution.

Wondering, “What If One Person Doesn’t Want the Divorce?” Would you like more information on mediation? Call San Diego Family Mediation Center at (858) 736-2411 today! We are happy to assist you.