When Your Spouse Says 'No' to Divorce

Surely, you’ve heard people say, “My husband will never give me a divorce,” or “My wife refuses to divorce me.” Perhaps you’ve heard people say such things, or perhaps you’ve seen it on television or in the movies. Or, perhaps you’re trapped in a hollow marriage and your own spouse has said: “I’ll never give you a divorce!”

If you wish to get a divorce but you’re worried that your husband or wife won’t cooperate, we have good news for you – it isn’t up to them. You see, California is a no-fault divorce state, which means that in order for you to get a divorce, you are not required to prove that your spouse was abusive, or that they abandoned you, or that they committed adultery.

“To get a no fault divorce, 1 spouse or domestic partner has to state that the couple cannot get along. Legally, this is called ‘irreconcilable differences,’” according to the California Courts. So, if your spouse has told you that he or she will never divorce you, just acknowledge the fact that your spouse is misinformed or simply doesn’t understand the law. In California, all that matters is that one spouse wants out and there is nothing the other spouse can do to stop the divorce.

My Spouse Says I’ll Never Get Support

Often, a spouse will say something to the effect of, “I won’t pay you a dime in alimony!” but such comments come from a lack of understanding of the law. As a part of a divorce settlement, a divorcing couple can certainly agree on spousal support. They can agree on an amount and a duration, but one spouse does not have the power to deny it. In other words, if the lower-earning spouse is asking for support, the higher-earning spouse does not have the legal authority to say, “No, I’m not going to pay you spousal support.”

The way it works is if the lower-earning spouse is asking for spousal support and the higher-earning spouse does not want to pay it, the judge on the case decides, not the higher-earning spouse. Like most states, however, spousal support is not awarded automatically in a California divorce. Before a judge can decide whether to award spousal support or not, he or she must consider a number of factors, including:

  • The age and health of both spouses.
  • Each spouse’s earning capacity.
  • Each spouse’s separate assets and debts.
  • A spouse’s contributions as a homemaker.
  • A spouse’s contributions to the other spouse’s education and career.
  • Who will get the children most of the time.
  • The tax consequences of spousal support.

“But what if my spouse cheated on me? Doesn’t that mean I don’t have to pay spousal support?” In some states, adultery is a factor and it can be used against a spouse so he or she does not receive spousal support based on “marital misconduct,” but that is not the case in California. Like we mentioned earlier, California is a no-fault divorce state, thus adultery will not be considered by a judge when deciding whether or not to award spousal support to an adulterous spouse.

In California, spousal support is awarded based on the lower-earning spouse’s need for support and the higher-earning spouse’s ability to pay it. If the spouses earn a similar amount, it’s unlikely that a judge would order support. Usually, the greater the disparity in incomes, the greater the chances of spousal support being awarded.

If spousal support is awarded, the duration of support is typically set for half the length of the marriage. For example, if the marriage lasted seven years, support would likely be ordered for three-and-a-half years. However, if the marriage lasted 10 or more years, support may be set without an end date, but that does not mean it cannot be modified or terminated at some point in the future.

Spousal support ends when:

  • A court order say sit ends.
  • A judgement says it ends.
  • One of the spouses pass away.
  • The receiving spouse remarries.
  • The supported person registers in a new domestic partnership.

To learn more about spousal support in California, click here.

Child Support is Legally Required

Perhaps your spouse has told you that he or she won’t pay you child support. They’ve made it clear that whatever happens, you won’t be receiving any support from them. As long as your spouse is your children’s biological parent or their legal parent through adoption, he or she is legally required to financially support your child. With Social Security numbers, driver’s license numbers and modern technology, it’s virtually impossible for parents to skip out on paying child support.

If you end up as the primary custodial parent, the parent who has the children most of the time, your spouse will be legally required to support your children. If they fail to support your children, they face serious consequences, such as:

  • Their wages can be garnished.
  • The funds in their bank accounts can be seized.
  • Their driver’s license can be suspended.
  • They can be denied a U.S. passport.
  • Their tax refund can be intercepted.
  • Their lottery winnings can be intercepted.
  • They can be sent to jail (a last resort).

The California Courts are usually required to order a child support amount that is determined by the child support guideline; however, some cases do fit one of the legal exceptions to the rule. For example, some parents can agree on an amount that is higher or lower than the child support guideline as long as the case meets certain requirements, including: the parents cannot be on public assistance, the parents think the support amount is in the children’s best interests, and the judge approves the amount of child support.

If your spouse is fighting the divorce, contact our Los Angeles divorce firm for legal advice. We’re here to help give you the peace of mind you need to proceed.