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I Do vs. I Do Not: Disagreeing over Divorce

Posted on in Divorce

California divorce lawyer, California family law attorneyAlthough you may have decided that the marriage is over and divorce is the best option, your spouse wants to keep trying to make the marriage work.  How do you divorce if your spouse does not agree?

California Law

First, California is considered to be a “no fault” divorce state. What this means is that neither side has to prove that the other side did anything wrong. “Irreconcilable differences” is one of the two legal grounds for divorce in California. The only other ground for divorce in California is incurable insanity. “Irreconcilable differences” means that the two sides simply cannot get along.

Next, both sides do not have to agree to end the marriage. If one spouse wants to end the marriage, the other party cannot prevent a judgment of dissolution. Even if the opposition refuses to appear in the case, to sign the papers, or show up to the hearings, the judge will in most cases enter a “default” judgement and the divorce will still go through.


Unless you are in an abusive or otherwise harmful relationship, it may be worth it to hear what the other side has to say. There are other options to separate yourself from the marriage but not divorce. This allows a cooling down period which allows you to determine if divorce really is the right answer for you. If your spouse is fiercely trying to save your marriage, you may want to consider a few alternatives after investing so much of yourself physically, emotionally, and financially. A few alternatives are:

  • Counseling: If you are at all interested in resolving the conflict in the marriage, this may be an option. You can meet with a counselor individually or together. Often hearing someone else’s opinion of a problem you have been facing aids in coming to a resolution. You may also discover during these sessions that you really are not interested in continuing the marriage and it may also convince your spouse of the same.
  • Physical Separation: Occasionally, spouses just need some space to think, and obtaining separate residences can often help. Physical separation is just that, moving out and living separately. This can also be done while living in the same home, just in different living quarters or rooms.
  • Legal Separation: This is a legal proceeding in which everything is divided just like during a divorce. The main difference is you are not legally divorced and therefore not legally single and able to marry again. This is a good option for those who either cannot get a divorce or are opposed to it.
  • Mediation: This is actually a step to divorce, although sometimes during mediation a couple will be able to resolve differences and stop the divorce from happening. During this process, you and your spouse meet with a third party mediator to sort out all the details of divorce yourself in order to end the divorce as amicably and cost-effectively as possible. Your mediator should be an experienced family law lawyer who can explain the legal effects of the decisions you and your spouse will be making in mediation. 

Divorce is a life-altering decision. It may be beneficial for you to speak to a lawyer with experience. A lawyer can help you understand your rights and duties, aid you in any unexpected problems that may arise, and also help you determine if you are being treated fairly. Attorney Benita Ventresca has been providing outstanding service to the Santa Clara County, Los Gatos, and San Jose, CA area for 35 years. If you would like to consult with a proven and experienced Santa Clara, CA divorce attorney, contact the the Ventresca Law Firm at 408-395-8822 for your free initial consultation.  



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20 S. Santa Cruz Ave., Suite 212
Los Gatos, CA 95030

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