What happens if one spouse doesn't want divorce?

[Bunnyrabbit]

What happens in a mediation if one spouse doesn't want divorce? Can one still file but can he then fight it? And how does "legal separation" work?

[carhill]

What happens in a mediation if one spouse doesn't want divorce?

The mediation fails and, generally, court and a judge are the next step.

Can one still file but can he then fight it?

Yes, this is called a 'contested divorce' in California. IIRC, once the lawsuit is filed, the respondent has thirty days to form and file a response with the court. If they don't, it becomes subject to a default motion and judgment on the original filing. If a response is filed, then the lawsuit proceeds and, if unable to settle, a judge will rule and dissolve the marriage. As such, one can't 'refuse' to get divorced, at least in California, as far as I know. A lawsuit, and ruling, can end a marriage without the approval of the respondent.

 

And how does "legal separation" work?

 

Pretty much the same as a divorce in California, except the parties are not free to legally re-marry, as they are not divorced. Most matters of financial and custody consequence are settled or ruled upon during the legal separation process. Your court will have the specifics on the differences.

[Bunnyrabbit]

for explaining it for me. We have scheduled a mediation tomorrow. We haven't spoken much until up to now because I've been in such pain. We started speaking and realizing where things went wrong for the first time. I think we still wonder how we would make it work again but it's yet so hard to let go of someone you've been with for sixteen years! So now I'm stuck because he doesn't want to rush into divorce but I have to leave the country in a week. That leaves him the advantage of filing where he is and I'm not quite sure what it does to me. I don't know why he would do that if he wants to stay together and take the summer to see where we are.But I run the chance of him filing and I can't tell him that I'm worried about that. Would legal separation be an option for us to keep me somewhat protected?

[carhill]

If this is the guy who withdrew a large amount of liquid marital assets, I wouldn't screw around. File, lock the timeline down, and go about your business. If you live and file in California, you'll have six months before any possibility of finalizing the divorce exists. A lot can happen in six months. At least, with filing now, a point in time is legally fixed, so what happens next can be quantified. If you're going to be living out of the country for some time, filing puts you in the driver's seat.

 

If you both decide to 'try again', the lawsuit languishes in a database somewhere and nothing comes of it. It takes at least one party actively prosecuting the lawsuit for it to move forward. As our experience bore out, even if action is taken, if the action does not meet with the court's scrutiny, it is rejected as if no action occurred.

 

Myself, I'd go to the mediation and see how things go. If storm clouds and lightening appear to be approaching, seek shelter. If it's a sunny day, enjoy the beach.

 

TBH, this is an important lesson I learned from my exW, who had been divorced twice. I learned to not fear the process and to embrace it. The end is the best part of it and worth the work. Life is good.

[Balzac]

I hope you understand the basic function of divorce is disolving/end the financial partnership. The custody of children too.

 

If you have no means of financial support, during the time between filing, the court will order him to provide temporary financial support, usually at an emergency hearing for this purpose.

[carhill]

Great point. OP, download the initial filing forms from your court's web site or collect them from the clerk of the court or self-help desk. I recall seeing motions on ours for temporary financial support/child support, etc right on the initial filing form. If so entered, and properly presented/filed, the court would act on those motions on a timeline separate from the general divorce process. IIRC, there are also additional forms which could be filed to seek waivers of filing and service and certain other process fees due to financial hardship.

 

Overall though, looking at the totality of your inquiries, I would opine that the single most productive tool in your toolbag, over the long haul, will be initiative and proactive knowledge gathering. The information for your specific case is out there and the same process which you go through to seek it out will hold you in good stead and with confidence during the process of divorce or reconciliation. IMO, that should be job #1, growing confidence in what you can do and how you can do it. You can.

[Bunnyrabbit]

My ambivalence is totally killing me here and I know it. It's too hard closing this chapter with him and I also find it just awful going through the legal system. But I know you're telling me to at least protect myself and that's where I'm stuck. Can the mediator help us with a "legal separation" and what happens then to our joint finances and how soon can that be done?

[Balzac]

By "joint finances" I take it to mean wealth/debts accumulated after marriage up to the moment of filing legal separation?

[carhill]

OP, at the point we engaged a mediator, what that person did was drill down through our financial disclosures, already served upon each other, and clarified any ambiguities of fact and then collated the findings into an agreement which was verbally gone over with us, then, later, outside of mediation, prepared into a MSA for review and filing. As we were amicable and agreeable, no disputes over finances occurred in mediation, as we had settled 99% of that stuff prior to even filing for divorce.

 

What we did was bring copies of relevant financial instruments/statements for debts and assets and crunched everything down to basics during the process. As the mediation occurred nearly 18 months after initial filing, the requisite documents needed were relative to the filing date; in your case, as you haven't filed, they would be current financial documents.

 

In our case, there was only one 'joint finance' of record, that being the account I created to fund the purchase of exW's new home, as part of advice by my lawyer. That account was emptied prior to filing and did not factor into the mediator's work. In your case, 'joint finances' will be any joint assets or debts which have value at the time of filing. As an example, the joint account he 'raided', if it has zero value when filing, is generally irrelevant to process, though a lawyer might be able to work a scenario in a contested action. Such scenarios/arguments have costs attached to them, and legal bills can pile up fast.

 

Remember, all of the experience I'm relating is relevant only to our particular court in California, so if you're in a different court or in a different state, YMMV. If you want to know what to expect from your mediator, call them and get an outline. Ours called each of us prior to the mediation date and outlined the process and what documents to bring with us. He happened to be very efficient and professional throughout. That his father was a lawyer probably had some influence on his professionalism as a 3L.

 

Part of that confidence thing I was talking about is going directly to the people who have the appropriate answers for you. Online support and discussion is one thing; getting competent legal answers and information is another. I was a member of LS during our entire divorce and never posted one question about it. Why? Because I knew the best answers would come from my lawyer. If you can't afford a lawyer, there are alternatives out there, a few of which I've already mentioned. Get the best stuff right from the horse's mouth. We'll be happy to offer non-professional advice and support.

[Bunnyrabbit]

Since we're not completely sure about divorce I think it's better to file for a legal separation at this point. If that is filed here in CA does it mean that he can't file for actual divorce later on in the state that he now lives in? And does legal separation "protect" me somewhat? Sorry for all the questions. I understand you prefer me to turn to an attorney or court but I find you all so very helpful and much easier for me to comprehend. And I feel the support in here:) Thank you!

[tbf]

Since we're not completely sure about divorce I think it's better to file for a legal separation at this point. If that is filed here in CA does it mean that he can't file for actual divorce later on in the state that he now lives in? And does legal separation "protect" me somewhat? Sorry for all the questions. I understand you prefer me to turn to an attorney or court but I find you all so very helpful and much easier for me to comprehend. And I feel the support in here:) Thank you!

Do yourself a favour and get yourself an attorney. While lay people can share our experiences, the very little you know is a bit frightening, especially since you haven't bothered to google a ton of relevant information available on the Internet.

 

Can't imagine what would happen if your husband were to throw a spanner into the works. You'd be left with your mouth open with no response.

[carhill]

Read up on improper jurisdiction and/or inconvenient forum. This is especially relevant if the separation has been filed for but not adjudicated (ruled on and received the seal of the court). IMO, I would not rely on filing for separation to 'protect' me unless I had competent legal advice to the contrary. IMO, if you're going to file and pay the filing/service fees, which I believe are the same for both actions, go with the divorce filing. If he's going to be mad/not mad, he's going to be mad/not mad, presuming that's the impetus for the tone of the filing.