While I don’t see a lot of people who are desirous of reconciling during the divorce process, it can happen, and ironically, has happened with some clients of mine over the last several weeks; that is what has triggered this to be the topic of my weekly blog.
There are essentially two ways of dealing with a reconciliation in the middle of the divorce; (1) The parties can agree by stipulation and order to simply dismiss the divorce case; or (2) The parties can sign a stipulation and order to suspend the divorce for 90 days while they attempt to reconcile.
The statutory provision is sec. 767.323 of the Wisconsin Statutes, which allows the parties so sign an agreement with the court for 90 days while they attempt to reconcile. During the 90 day period, they may resume living together and such conduct does not constitute an admission that the marriage is not irretrievably broken or a waiver of the ground that the parties have voluntarily lived apart continuously for 12 months or more immediately prior to the commencement of the action. During the 90 day reconciliation period, the suspension of the divorce may be revoked upon the motion of either party by an order of the court. If after the 90 days the parties are fully reconciled, the case is dismissed. If after the 90 days the reconciliation has not worked out, the case proceeds, “business as usual.”
When confronted with the question by a client of what to do if they are trying to reconcile in the middle of the divorce, I usually suggest the 90 day suspension of the divorce. If the parties outright decide to simply dismiss the case, and should change their mind about the reconciliation, in that event, they are forced to refile the divorce action, pay an additional filing fee at the court house and pay additional monies in lawyer fees to have the case refiled. While one could try to file a motion to have the dismissed case reopened, to avoid those additional costs and fees, depending on the timing of when the case was dismissed, with when the parties reconciliation having failed, if too remote in time, the court may not allow the reopening of the originally dismissed action. This would also trigger a new statutory 120 day waiting period before proceeding to a final divorce hearing. More time wasted! The better way to go is for the parties to sign a stipulation and order to suspend the divorce for 90 days while they attempt to work things out. This affords so many more options to the parties. Further, they won’t incur having to start over, and be stuck having to pay more money in fees and costs, should the reconciliation be unsuccessful. I think it also shows the intention of the parties both to the court, to the attorneys, and more importantly to the parties themselves, that they are serious about working things out by signing the agreement, showing their intention to try to effect the reconciliation of the marriage.
Finally, there is also a way of revoking the divorce should the parties reconcile after the divorce is finalized. Under sec. 767.35 (7) of the Wisconsin Statutes, where a judgment of divorce has been granted and the parties subsequently intermarry, the court, upon their joint application and upon satisfactory proof of the marriage, shall revoke all judgments and any orders that will not affect the right of 3rd persons.
For more information on this article, contact Karp & Iancu.
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