Does My Husband Need My Permission to Cancel the Divorce?
By Beverly Bird
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Both spouses do not have to consent to a divorce for the court to grant one. All states recognize no-fault divorce, which means that if one spouse wants to end the marriage, there is nothing the other spouse can do to prevent it from happening. If your husband changes his mind and wants to stop the divorce after he’s begun it, he does not need your consent. However, you can still divorce. Your options for proceeding with the divorce vary depending on the papers each of you filed.
Dismissal of Complaint
If your husband initiated the divorce proceedings by filing a complaint, it’s his complaint and he can do whatever he likes with it. If he changes his mind about moving forward, he can notify the court, indicating that he wants to cancel his request for a divorce. He does not need your permission. The exact procedure varies by state, but it usually requires that he file only one more document, instructing the court that he wants to dismiss his case and withdraw his complaint. Divorce is a civil litigation; the court cannot force him to continue a civil lawsuit he started against you.
Protection of Counterclaim
Although your spouse can cancel his petition or complaint for divorce of his own free will, this won’t necessarily end your case. When he had you served with his divorce petition, you had the right to respond to it. If you did nothing, he can cancel his petition and the court will close your case. This is also true if you or your attorney filed only an answer or an appearance in response. However, if you filed a counterclaim or a counter-petition for divorce, this legally acts as your own complaint. It’s a lawsuit in and of itself. Therefore, your husband’s dismissal would end his request for divorce, but it would have no effect on your own request for divorce. If he did not or does not file a response to your counter-petition or counterclaim, you can move ahead and get your divorce by default. The court will grant you your divorce and will usually give you everything you requested in your counter-petition because your husband has chosen not to be involved in the proceedings.
Some states, such as Pennsylvania, allow spouses to file for divorce together. This involves a joint or consent petition for divorce that both of you must sign. In this case, either one of you can stop the process, without the permission of the other. In Pennsylvania, the court will not finalize a divorce by mutual consent without both spouses filing a second affidavit, confirming consent, in addition to the initial petition. One spouse can simply decline to do that. In other states, either spouse can withdraw his consent at any time. In both cases, the court will close the case.
You do not have to stay married if you did not file a counterclaim, or if you filed a joint petition with your husband and he backed out of the deal. If he dismisses his complaint or petition, or withdraws his consent to a joint divorce, your present litigation will close. However, you’re free to start the divorce process all over again by filing your own complaint or petition. If you file on a no-fault ground, your husband cannot stop the divorce from eventually happening. He cannot contest your ground; he is not required to sign your final divorce decree for it to be legally binding. If he chooses not to participate, the court will grant your divorce by default.
Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.