Navigating the end of a marriage can be an emotionally challenging experience, especially when one spouse is unwilling to cooperate. In California, understanding the grounds for divorce is essential for those facing this predicament. If you find yourself in a situation where you want to end your marriage, but your spouse refuses to grant you a divorce, this article will clarify your legal standing and outline the steps you can take to move forward, including mediation and collaborative divorce as alternative approaches.

Legal Grounds for Divorce in California

California law clearly defines the grounds for divorce in the California Family Code. The two primary grounds for divorce are:

  1. Irreconcilable Differences
  2. Permanent Legal Incapacity

According to the California Family Code §2310:

Dissolution of the marriage or legal separation of the parties may be based on either of the following grounds, which shall be pleaded generally:

(a) Irreconcilable differences, which have caused the irremediable breakdown of the marriage.

(b) Permanent legal incapacity to make decisions.

California courts only recognize these two grounds for obtaining a divorce in California. Understanding them is crucial – especially when one spouse does not cooperate.

Understanding Irreconcilable Differences as Grounds for Divorce

The majority of divorce litigants in California file under the grounds of irreconcilable differences. The law defines irreconcilable differences broadly as “those grounds which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved.” (Cal. Fam. Code §2311).

This ground is intentionally broad to encompass a wide range of personal and marital issues that make continuing the marriage impractical. Importantly, the court will not consider specific acts of misconduct, such as infidelity or abuse, when determining irreconcilable differences. The California Family Code §2335 states:

Except as otherwise provided by statute, in a pleading or proceeding for dissolution of marriage or legal separation of the parties, including depositions and discovery proceedings, evidence of specific acts of misconduct is improper and inadmissible.

This means that, regardless of the reasons behind the marital breakdown, the court will focus on whether the differences are substantial enough to warrant a divorce, not on who is at fault.

The Specifics of Permanent Legal Incapacity as Grounds for Divorce

Permanent Legal Incapacity is a much more specific and rare ground for divorce. To be granted a divorce on this basis, the petitioner must provide competent medical or psychiatric testimony proving that their spouse was permanently legally incapacitated at the time the petition was filed and remains so. The relevant statute, California Family Code §2312, stipulates:

A marriage may be dissolved on the grounds of permanent legal incapacity to make decisions only upon proof, including competent medical or psychiatric testimony, that the spouse was at the time the petition was filed, and remains, permanently lacking the legal capacity to make decisions.

Due to the stringent requirements for proving permanent legal incapacity, nearly all divorces in California proceed on the grounds of irreconcilable differences.

Can a Spouse Refuse to Grant a Divorce?

In California, the answer is a resounding no. If one party wishes to end the marriage, they can file for divorce under the grounds of irreconcilable differences, and the court will generally grant it, even if the other spouse objects. This principle is rooted in the notion that it takes only one party to decide that a marriage is over. Once the Petitioner pleads irreconcilable differences, the other spouse simply can’t contest the divorce successfully.

As the case of In re Marriage of Greenway (2013) explains:

The decision that a marriage is irretrievably broken does not need to be based on objective facts…. For this reason, the code ‘offers no precise definition or guidelines to measure the existence of ‘irreconcilable differences.’ Instead, it simply requires the court to determine there are ‘substantial reasons for not continuing the marriage and which make it appear the marriage should be dissolved.’

This means that the court’s determination is subjective and focuses on whether substantial reasons exist to dissolve the marriage. The law reflects the actual reasons behind marital breakdowns, while making questions of fault or misconduct irrelevant. In over 23 years of family law experience, I have never seen a Court deny a dissolution of marriage if a party objects.  It is pretty much a universal truth in California that it only takes one person to get a divorce.  The Court will virtually never sustain objections to a plea of irreconcilable differences.  In essence, the Judge will pretty much always grant the divorce if one party wishes it.

Moving Forward When Your Spouse Refuses to Grant a Divorce

If you want to end your marriage but your spouse says they won’t grant you a divorce, here are some steps you can take:

  1. File for Divorce: Begin by filing a divorce petition with the court, citing irreconcilable differences as the grounds. Given the broad interpretation of these differences, this step establishes your desire to end the marriage.
  2. Serve Divorce Papers: Legally serve the divorce papers to your spouse. This step ensures that your spouse is formally notified of your intention to dissolve the marriage.
  3. Proceed with Court Process: Even if your spouse refuses to participate, the court can proceed with the divorce process. Your spouse’s lack of cooperation does not prevent the court from moving forward.
  4. Attend Court Hearings: Participate in any required court hearings. The court will consider your testimony and any relevant information to determine whether irreconcilable differences exist.
  5. Finalize the Divorce: Once the court is satisfied that irreconcilable differences have caused an irremediable breakdown of the marriage, it will grant the divorce, regardless of your spouse’s objections.

Considering Mediation or Collaborative Divorce

In addition to the traditional court process, there are alternative methods to resolve divorce disputes that may be more amicable and less stressful:


Mediation involves a neutral third party, known as a mediator, who helps both spouses negotiate and reach an agreement on various aspects of the divorce.  The issues include property division, child custody, and support arrangements. Mediation can be a cost-effective and time-efficient way to resolve disputes without the adversarial nature of court proceedings. Benefits of mediation include:

  • Confidentiality: Mediation sessions are private, and the discussions are not part of the public record.
  • Control: Both parties have more control over the outcome compared to a court decision.
  • Flexibility: Mediation allows for more flexible solutions tailored to the specific needs of both parties.

Collaborative Divorce

Collaborative divorce is a process where both spouses, along with their respective attorneys, agree to work together to reach a settlement without going to court. This approach encourages cooperation and open communication. Key aspects of collaborative divorce include:

  • Commitment to Settlement: Both parties commit to resolving issues through negotiation and agree not to litigate.
  • Team Approach: Collaborative divorce often involves other professionals, such as financial advisors and mental health professionals, to assist in the process.
  • Preserving Relationships: This method can help maintain a more amicable relationship, which is particularly beneficial if children are involved.

Because of the additional emotional support provided by trained mediators and collaborators, a consensual dispute resolution process like Mediation or Collaborative Divorce can help when there is a spouse who refuses to believe the marriage is over.  The tools mediators and collaborators use to manage emotional responses go a long way to help with difficult conversations like this.


In California, the grounds for divorce are designed to simplify the process of ending a marriage, focusing on the irreparable breakdown of the relationship rather than assigning blame. If you find yourself wanting to end your marriage but your spouse refuses to grant you a divorce, rest assured that the law is on your side. By citing irreconcilable differences, you can move forward with the divorce process, even in the face of opposition from your spouse.

Additionally, exploring options such as mediation or collaborative divorce can provide a more amicable and cooperative path to resolving your divorce. These methods can help reduce the emotional and financial stress associated with traditional divorce proceedings.

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handwrite with marker we can help youFor more detailed information and personalized legal advice regarding divorce in California, contact us. With expertise in family law and a commitment to providing comprehensive support, we can help guide you through the divorce process. To schedule a consultation, call 858-410-0166 or click here to use our online tool to get in touch.