You filed for divorce and you have had second thoughts now about proceeding. Perhaps, you rushed into things too quickly, or were influenced by family and friends to file. Now that you are in the middle of the divorce, you and your husband have reconciled. How do you go about dismissing the divorce action?
There are two ways that the case can be dismissed. If you filed for divorce and are early on in the case, and there has been no appearance by your spouse and/or no responsive pleadings filed, you can dismiss the divorce action by simply filing a notice of voluntary dismissal with the court, with a copy to your spouse. I also encourage you to include an order separately for the court to sign to dismiss the action.
In a situation where your spouse has appeared in the action, or responsive pleadings were filed, you cannot dismiss the divorce case simply by filing a notice of voluntary dismissal. Instead, the divorce case can be dismissed by filing a formal written stipulation and order to dismiss the action with the trial court, or by filing a formal motion with the court to request that the case be dismissed. Most courts will accept the written stipulation and order for dismissal.
Keep in mind when drafting either a voluntary dismissal of the action or a stipulation and order for dismissal, that by doing so, any orders previously entered in the divorce case will have no further legal effect, that if you change your mind, you will need to start over and file a new divorce action, including a new filing fee, and further, there will be a new 120 day waiting period before you can be divorced when filing again, should the reconciliation not work out. These are all things to consider before simply dismissing the pending divorce action. Another option, which I have written about in a previous blog, is entering into a 90 day suspension of the divorce to effect reconciliation. If at the end of the 90 days you are reconciled, the case can be dropped. If on the other hand, at the end of the 90 days you are not reconciled, you can proceed with the divorce. The 90 day suspension to reconcile, must be made upon written stipulation and order of both parties.
Also make sure when drafting any of these documents to dismiss the case, that language is used, “without prejudice and without costs to either party.” This means and preserves the right to refile the divorce case if the reconciliation doesn’t work out. If a lawsuit is dismissed “with prejudice,” that would legally bar someone from refiling a lawsuit involving the same issues and subject matter.
While parties reconciling in the middle of the divorce is fairly rare, it does happen, and a party going through a divorce has the options of considering an outright dismissal of the case, or the option of the 90 day suspension of the divorce.
For more information about this article, contact the law offices of Karp & Iancu.
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Milwaukee, WI 53226
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