While it doesn’t happen all that often, sometimes a couple has second thoughts in the middle of the case about proceeding with a final divorce hearing. I remember one of the first divorce cases I handled early in my career. It was a case for my brother and he asked that I do the final court hearing. He had pieced the case together, had the parties into a settlement agreement, and since I was a new attorney with the practice, he thought I would benefit by handling the final court hearing. I went to court and met the client in the hallway, all set to do my very first stipulated divorce. When I arrived, my client asked if she could have a word with me in the hallway; that usually spells trouble when a client wants to talk “privately” to you, as an attorney. She indicated to me that she and her husband had second thoughts about proceeding with the divorce and wanted to reconcile. They wanted the divorce dropped. We walked into court and when the court called he case, respectfully told the judge that the parties had reconciled and wanted the divorce case dismissed. The judge indicated that after all his years on the bench he had never had a case where a couple reconciled at the last minute at the time of what was to have been their final court date and only was to happy to dismiss the case and wish the couple well.
So, what can you do if you have second thoughts in the middle of the divorce and want to try to reconcile? There are essentially two ways to go about it.
1. 90 day suspension of the divorce.
Under the law, the parties can enter into stipulation to suspend the divorce for 90 days while the parties attempt reconciliation. If at any time during the suspension, either party wants to revoke it and move forward, they can, upon proper notice to the court. If at the end of the 90 days the parties have reconciled, the divorce case is dismissed. If at the end of the days the parties are not reconciled and wish to move forward they can. Sometimes a couple asks for a second 90 suspension, but that is completely discretionary on the part of the trial court and there is nothing in the statute that specifically provides for a back to back 180 day divorce suspension.
2. Dismissal of the case.
The second option is simply an outright dismissal of the case. Where both parties have appeared and filed pleadings (legal papers), this would require both of them signing an agreement and present to the court an order dismissing the case. If a party has filed a divorce but the other person hasn’t been served yet with legal papers, or they were served but failed to respond legally, the case can be dismissed on a voluntary dismissal, without requiring the other person’s approval.
When asked which route to take, I usually suggest the first option. It gives more flexibility to the parties than an outright dismissal of the divorce. I have been in the business long enough to tell you people’s emotions can run like a roller coaster and today you feel like reconciling and tomorrow you may feel like moving forward, or vice versa. If you outright dismiss the divorce case and change your mind, you have to refile the divorce, pay a new filing fee, perhaps additional lawyer fees, and start all over, including a new 120 day waiting period. You can also consider filing a motion with the court to vacate the dismissal and reinstating the divorce case, but that is a lot of extra work and expense and no guarantee that the court grants the request.
If you proceed with a 90 day suspension of the divorce, it gives you the option of trying to work things out for three months and you don’t lose anything if it fails. At the end of the 90 days, you simply pick up where you left off. You won’t pay more attorneys fees for starting over, won’t lose 120 day waiting period, won’t lose any of the court orders put in place, and have the option of completing the existing case. If you do reconcile, the case is simply dismissed at the end of the 90 day reconciliation period. I also think it adds legal importance to a person simply saying “we want to reconcile.” You are signing a legal document that the court must approve of your intention to try to work things out and stay married.
Of course, what option you select has to be what is right for you, not for the lawyer and not for the court. Follow your heart and do what you think is best for you and your family. Here’s to a successful reconciliation!
933 N. Mayfair Rd., Suite 300
Milwaukee, WI 53226
M – F: 6:30am – 8pm
Sa – Su: 7:30am – 6pm