Can a Divorce Be Rescinded?
By Robin Elizabeth Margolis
If you are going through a divorce proceeding and you and your estranged spouse decide to reconcile, you can agree to rescind or cancel the planned divorce. If your divorce decree has already been issued in final form by a court, you will have to remarry your ex-spouse if you want to re-tie the knot.
European Divorce Precedents
Few Americans divorced prior to the late 19th century because the Protestant majority followed European legal precedents, which discouraged divorce except in cases of adultery, desertion and impotence. Women were legally semi-slaves and could seldom resist social and religious pressure placed on estranged couples to reconcile.
American Reconciliation Efforts
In the mid-1960s, the Association of Family and Conciliation Courts urged family courts to promote reconciliation of separating couples within the legal system. This family court emphasis on reconciliation was lost during the divorce surge in subsequent decades, but family lawyers specializing in marriage reconciliation have begun to appear.
Power to Cancel
Power to cancel a divorce proceeding before a divorce decree is issued rests with the spouse who filed the initial petition for divorce with the court. If you are not the spouse who filed the divorce petition, you cannot stop the action unless you convince your estranged spouse to file a document asking the court to dismiss the divorce case.
Withdrawing Divorce Petition
Divorce laws and court procedures vary greatly from one state to another. Typically, you can fill out and file with the court a form canceling your divorce proceedings, typically called a "Motion for Order of Dismissal." You will also have to provide an "Order of Dismissal" form to the court who then issues it when your motion is approved. Both you and your spouse will likely be required to sign both forms.
After filing the forms with the court, you will be called before a judge and questioned about the motion. If your spouse is not present, you may be asked if your spouse agrees with the decision to cancel the divorce. If the judge is satisfied that both you and your spouse want to call off the divorce, the judge will sign the order of dismissal. Ask the judge's clerk for a copy of the signed order. Keep one copy for yourself and mail a second copy to your spouse.
After Divorce Decree
Some couples decide they want to rescind their divorce after their divorce decree is final. There are legal procedures, known as divorce appeals, in which one party asks a higher court to rule there are serious legal or factual problems with a final divorce decree, but these proceedings are usually intended to change items in the divorce decree rather than rescind the divorce. If you wish to legally cancel the effect of the divorce after a final divorce decree is issued, you will have to remarry your ex-spouse because the final divorce decree ended your marriage.
- FindLaw.com: Appeals and Motions to Modify the Divorce Judgment
- HG Legal Directories.org: U.S. Divorce Laws Center -- Individual State Divorce Laws
- Superior Court of Maricopa County, Arizona: Instructions -- How to Fill Out the "Decree of Dissolution of Marriage -- Divorce -- Without Minor Children"
- Untying the Knot: A Short History of Divorce; Roderick Phillips
- Association of Family and Conciliation Courts: A Legacy of Innovation and Collaboration
- The American Economic Review: Did Unilateral Divorce Laws Raise Divorce Rates? A Reconciliation and New Results
- The Divorce Center: Appeal Divorce Ruling -- Divorce Court Appeals
Robin Elizabeth Margolis is a freelance writer in the Washington, D.C., area. She has been writing about health care, science, nutrition, fitness and law since 1988, and served as the editor of a health law newsletter. Margolis holds a bachelor of arts degree in biology, a master's degree in counseling and a paralegal certificate.