What If My Spouse Keeps Delaying the Divorce?

Most people facing a stalling spouse are living in a strange kind of limbo. The papers have been filed in San Diego County, or are ready to go, and the other side has gone quiet, missed a deadline, or keeps promising documents that never arrive. The questions that follow are practical. Can this go on forever? Is the delay itself a strategy? What can the Superior Court of California, County of San Diego actually do about it? This article walks through the main tools the law provides.

On this site, assertive advocacy means preparation and the willingness to use court procedure when cooperation runs out. It does not mean escalating a conflict. Every tool below is a lawful, court-supervised response to delay.

The ground for divorce in nearly every California case is "irreconcilable differences, which have caused the irremediable breakdown of the marriage," one of two grounds listed in Family Code section 2310. The other is permanent legal incapacity to make decisions. Neither ground requires the other spouse to agree, and neither requires proof that anyone did anything wrong. That is what "no-fault" means.

In practice, this means one spouse cannot veto a divorce. The person who files, called the petitioner, may move forward even if the other spouse, the respondent, refuses to take part. A related page explains what happens when a spouse won't sign, and the short answer is that no signature from the respondent is needed to end the marriage.

There is a minimum timeline. Under Family Code section 2339, a judgment ending the marriage cannot become final until six months have passed from the date the summons and petition are served on the respondent, or the date the respondent appears in the case, whichever occurs first. A later section of this article covers that rule in detail.

The real distinction is between two different things. A spouse cannot prevent the divorce itself from being granted. A spouse can, however, slow down the resolution of the issues that come with it: dividing property, setting child and spousal support, and deciding custody. Those issues are where delay tactics live, and where the court's tools come into play.

A "default" is what happens when a respondent who has been properly served does not file a response within the time stated on the summons, which is 30 days. At that point, the petitioner may ask the court to enter the respondent's default. The case then moves forward without the respondent's participation.

Proper service comes first. Service means formally delivering the summons and petition to the respondent in a way the law accepts. If service is defective, a default may not hold up. The California Courts self-help site explains service rules for divorce cases, and the Superior Court of California, County of San Diego publishes local family law information.

After default is entered, the petitioner submits a proposed judgment along with supporting declarations. A declaration is a written statement signed under penalty of perjury. The judgment can address property division, support and custody. Under Family Code section 2336(a), no judgment of dissolution may be granted on the default of one of the parties; the court requires proof of the grounds alleged, and the proof, if not taken before the court, is by affidavit. Where there are minor children, the affidavit must include an estimate of each party's monthly gross income, and where there is a community estate it must include an estimate of the value of the assets and debts proposed to go to each party, unless a complete and accurate property declaration is filed. A default is not a blank check. The six-month waiting period under section 2339 still applies in a default case.

Two situations are easy to confuse. A true default means no response was filed and there is no agreement. A "default with agreement" means both spouses sign a written settlement, but only the petitioner files the court paperwork, and the respondent never files a response. The second is cooperative. The first is the path available when a spouse simply will not engage.

Once a respondent does appear, delay can take quieter forms.

Not serving financial disclosures. Each spouse must serve a preliminary declaration of disclosure, a sworn list of assets, debts and income, either with the petition or response or within 60 days of filing it, unless the parties extend that time by written agreement or the court extends it by order (Family Code section 2104(f)). When a spouse does not serve the declaration, Family Code section 2107 lets the other spouse, if that spouse has served a declaration, request the missing declaration or further particularity and, if the request is not met, move to compel a further response or move for an order preventing the noncomplying spouse from presenting evidence on the issues that should have been covered (section 2107(a), (b)). The next section covers disclosure in full, and a related page explains what happens when a spouse refuses financial records.

Withholding information more broadly. California family law allows formal discovery, the court-supervised process of gathering evidence from the other side. Common discovery tools include interrogatories (written questions answered under oath), requests for production of documents, and depositions (questioning under oath before a court reporter). Subpoenas can reach third parties such as banks and employers. All of these are lawful channels. None involve accessing another person's accounts, devices or private communications.

Ignoring orders or discovery. Misuses of the discovery process include failing to respond to an authorized method of discovery and disobeying a court order to provide discovery, and after notice and an opportunity for hearing the court may impose monetary sanctions for them (Code of Civil Procedure sections 2023.010(d), (g) and 2023.030(a)). Fee sanctions under Family Code section 271 for conduct that frustrates settlement are discussed below.

Stalled cases. Under California Rules of Court, rule 5.83, courts must have a family centered case resolution process, and for cases filed on or after January 1, 2013 the court must include a review of dissolution, legal separation, nullity and parentage cases within at least 180 days from the date of the initial filing and at least every 180 days after that until disposition. Unless the court determines that procedural milestones are being met, the review must include at least a status conference or a family centered case resolution conference. The milestones the court considers include a proof of service of summons and petition filed within 60 days of case initiation and the petitioner's preliminary declaration of disclosure served within 60 days of filing the petition. A related page explains what a contested divorce is.

Moving or hiding property. Under Family Code section 2040, the family law summons contains a temporary restraining order that restrains both parties from transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life. Under section 233, the order is in effect against the parties after the petition is filed and the summons is issued and personally served on the respondent, or service is waived and accepted, until final judgment is entered, the petition is dismissed, or the court orders otherwise. Pages on this site cover a spouse hiding assets in more depth.

California's disclosure system has two stages, and each has a fixed point in time.

The preliminary declaration of disclosure is due on the section 2104(f) timeline described above. Under Family Code section 2104, it must identify all assets and liabilities in which the spouse has or may have an interest, "regardless of the characterization of the asset or liability as community, quasi-community, or separate." It must include all tax returns the declarant filed within the two years before serving it, and it is accompanied by a completed income and expense declaration unless a current one has already been provided (section 2104(a), (e)). It is signed under penalty of perjury.

The final declaration of disclosure, together with a current income and expense declaration, is due before or at the time the parties enter into an agreement resolving property or support issues other than temporary support, or, if the case goes to trial, no later than 45 days before the first assigned trial date (Family Code section 2105(a)). Among other things, the final declaration must include all material facts about the characterization of assets and liabilities, the valuation of assets contended to be community property, and the amounts of obligations contended to be community obligations (section 2105(b)).

The spouses may waive the final declaration only by mutual agreement. Under Family Code section 2105(d), that waiver must be executed under penalty of perjury in open court or by separate stipulation. It must also state, among other things, that both sides have already completed and exchanged their preliminary disclosures. A stalling spouse cannot skip disclosure just by refusing to fill out the forms: if a judgment is entered when the parties have failed to comply with all disclosure requirements, the court shall set the judgment aside, except as section 2107(d) otherwise provides.

The statute makes clear what is at stake. Perjury on either declaration "may be grounds for setting aside the judgment, or any part or parts thereof," in addition to other remedies. Beyond that, section 2107 allows a motion to compel a further response and requires money sanctions for failure to comply with the disclosure chapter, unless the court finds that the noncomplying party acted with substantial justification or that other circumstances make the sanction unjust (section 2107(b), (c)).

One other rule matters here. Under Family Code section 2552, the court values community assets and debts as near as practicable to the time of trial. On 30 days' notice by the moving party and for good cause shown, it may use a date after separation and before trial to accomplish an equal division of the community estate in an equitable manner.

Bifurcation is a court order that splits off the question of marital status from the other issues in the case. It lets the court end the marriage, returning both spouses to single status, while property, support or custody disputes continue. Family Code section 2337(a) provides that the court, "upon noticed motion, may sever and grant an early and separate trial on the issue of the dissolution of the status of the marriage apart from other issues." The six-month period under section 2339 still has to run.

The moving spouse must serve a preliminary declaration of disclosure with the motion, unless it was already served or the parties agreed in writing to defer it (section 2337(b)). The court may also attach conditions that protect the other spouse. Under section 2337(c), those conditions include:

• indemnifying the other spouse for taxes, reassessments, interest and penalties that would not have been owed if the spouses were still married when the community estate was divided;
• keeping existing health and medical insurance for the other spouse and minor children until final judgment, or providing comparable coverage or paying for care;
• indemnifying the other spouse if the bifurcation ends that spouse's right to a probate homestead in the home where that spouse lives; and
• indemnifying the other spouse for the loss of rights to a probate family allowance as a surviving spouse.

Section 2337(c) lists further conditions, including indemnity for the loss of the other spouse's rights to retirement, survivor or deferred compensation benefits and to social security benefits.

Bifurcation does not resolve property or support. Those issues continue after status is ended. Its practical value is narrower but real. Bifurcation lets a spouse ask the court to end the marriage itself while the rest is litigated.

The six months is not a delay imposed by the court or by the other spouse. It is a statutory minimum. As section 2339 provides, the period runs from the date the summons and petition are served on the respondent, or the date the respondent appears in the case, whichever occurs first, never from the date of filing. The court may extend it for good cause.

Subject to subdivision (b) and sections 2340 to 2344 of the Family Code, no judgment of dissolution is final for the purpose of terminating the marriage until the six months have expired, however quickly the spouses settle everything. It is a floor, not a typical timeline. A case with contested property, support or custody issues can take longer.

Because the clock starts at service, the respondent's silence does not stop it. A spouse can extend the overall case by refusing to cooperate on the issues. That same spouse cannot use the waiting period itself as a delay tactic.

The waiting period also does not freeze the case. During those months, and afterward, the court can make temporary orders.

While a divorce is pending, the court may order either spouse to pay an amount necessary for the support of the other spouse, or either or both parents to pay an amount necessary for the support of the child, upon application of either party (Family Code section 3600). It may also make an order for the custody of a child during the pendency of a proceeding (Family Code section 3022). A party asks for these orders with a Request for Order (form FL-300), which in a family law proceeding has the same meaning as a motion (California Rules of Court, rule 5.92(a)).

Disobedience of any lawful judgment, order, or process of the court is a contempt of the court's authority (Code of Civil Procedure section 1209(a)(5)). A temporary support order may be modified or terminated at any time, except as to an amount that accrued before the date of the filing of the notice of motion or order to show cause to modify or terminate (Family Code section 3603).

At some point, stalling stops being a nuisance and becomes a violation. The court has several responses.

Contempt. Disobedience of any lawful judgment, order, or process of the court is a contempt of the court's authority (Code of Civil Procedure section 1209(a)(5)). Contempt is a separate proceeding with its own requirements and penalties; on a finding of contempt, the court may impose a fine not exceeding $1,000 payable to the court, imprisonment not exceeding five days, or both, and may order a party found in contempt of an order to pay the reasonable attorney's fees and costs of the party who brought the contempt proceeding (section 1218(a)).

Fee sanctions under section 271. Family Code section 271(a) allows the court to base an award of attorney's fees and costs "on the extent to which any conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys." The statute calls the award "in the nature of a sanction." The requesting party does not have to show financial need. The court must consider both spouses' incomes, assets and liabilities, and may not impose a sanction that creates an unreasonable financial burden. Under section 271(b), notice and an opportunity to be heard must come first. Under section 271(c), the award is paid only from the sanctioned spouse's property or income, which may include that spouse's share of the community property. A related page discusses Family Code 271 sanctions in San Diego cases.

Evidence sanctions. In a discovery dispute, after notice and an opportunity for hearing, the court may impose an issue sanction ordering that designated facts be taken as established, or prohibiting a party who misused the discovery process from supporting or opposing designated claims or defenses, and an evidence sanction prohibiting that party from introducing designated matters in evidence (Code of Civil Procedure section 2023.030(b), (c)).

These are tools the court may apply after weighing the record, and whether any of them is ordered depends on the facts of each case. What tends to matter is careful documentation of what was requested, when, and what came back, if anything.

Which tool fits depends on the facts of a particular divorce. A consultation is a place to raise questions about the tools described above. The firm practices California family law only.

To talk with the firm about a delayed divorce, call San Diego Family Law Advocates at 858-758-2288 for a confidential consultation.