It Takes Two to Marry; One to Divorce

It comes up quite often that a client will ask, “can my spouse do anything to stop the divorce?” or, “can I do anything to stop the divorce?” The short answer is, no.

To get married in the State of California, there must be two willing participants. Assuming the couple skips the niceties of a long courtship, moving in together, meeting each other’s parents and extended families, getting engaged, registry shopping, and then ultimately overpaying for a night full of heavy drinking and awkward toasts – there are still a few hoops that love birds need to fly through to get married.

First, they’ll need to obtain a marriage license. That requires completing the marriage license application (either in advance or at the clerk’s office – depending on the county). They’ll also need to both present a valid non-expired photo ID, in person, along with their social security numbers. And of course, they will have to pay a fee for the license.

Next, the couple will need to have their marriage solemnized by a person who is authorized to do so. Cal. Fam. Code § 400. This can be a religious leader (including online church Reverends over the age of 18), a judge, or any elected official of a city or county (or both).

In order to accomplish the above, there needs to be regular communication and coordination between the parties. If one party chooses not to get married, the process ends. In short, the only way the couple will be married is if both choose to go through with it – all the way to the end!

However, when it comes to divorce, it is quite the opposite. One spouse commences the dissolution, with or without the other spouse’s knowledge, by filing a Petition and Request for Dissolution with the court. The court will issue a Summons, which will then need to be served on the other spouse. Sometimes, this is the first time the other spouse is learning about the divorce.

Once the other party is served with a Summons and Petition for Dissolution, the filing spouse can (and often will) proceed with or without the non-filing spouse’s participation. Not responding does not stop the case from proceeding. Instead, the non-filing spouse’s non-response will simply result in a default. (See last month’s blog post on the topic of defaults.)

At this point, the train has left the station. Unless both parties agree to reverse course, it will be moving forward. For some, the ride will be bumpy. But hopefully, others are represented by competent counsel that can make the ride as smooth as possible.

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