How Can a Petitioner Drop a Divorce?
By Marcy Brinkley
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If you file for divorce and later change your mind, you can ask the court to drop the case. The legal term for this action is "dismissing" your petition for divorce before it is finalized. The procedure for dismissal will depend on your state's laws as well as your spouse's response to the request. Since filing for divorce does not change your marital status, the effect of a dismissal is simply a removal of the case from the court's docket.
Some states use different terminology. In general, the party who files for divorce is called the petitioner or plaintiff and the other spouse is called the respondent or defendant. If the petitioner wants to dismiss the divorce case before it has been finalized, the general procedure is to file a motion for dismissal, notify the other party, set a hearing if necessary, and ask the court to sign an order to dismiss. If one of the parties later decides to proceed with a divorce, he must file a new petition and begin the procedure again.
If you and your spouse decide to reconcile, the court will grant a motion to dismiss the case. Typically, the petitioner files an agreed motion to dismiss and presents a proposed order signed by both parties to the judge. In some jurisdictions, an uncontested hearing is required. In others, the petitioner may simply mail the paperwork to the clerk of the court and ask her to present the order to the judge.
If your spouse has not yet been served, you may ask the court to dismiss the case without your spouse's consent. However, if your spouse has been served and has filed an answer or counter-petition, you must notify him of your request to dismiss and set a hearing if he does not agree. In most situations, the judge will not dismiss the case if a counter-petition has been filed. If there is no counter-petition, the judge is likely to dismiss the case, but the other party is free to file a divorce petition of his own after the first case is dismissed.
Many courts have rules that prevent divorces and other lawsuits from lingering on the docket for long periods of time. If you have not been able to locate your spouse to serve him with notice of the divorce and the requisite period of time -- usually 6 to 18 months -- has passed, you will receive a notice from the court that the case will be involuntarily dismissed unless the other party is served within a certain time period. If you take no further action, the case will be removed from the docket, but you may choose to file a new divorce case in the future. Most states require that a "diligent effort" be made to locate a missing spouse. Once you've exhausted all of your efforts, the court will allow you to serve your spouse by publishing notice of the divorce in a newspaper.
- Garg & Associates: Original Answer and Counter Petition for Divorce
- Avery & Cheerva: Dissolution of Marriage
- The State Bar of California: What Should I Know About Divorce and Custody?
- FindLaw: Filing and Serving the Divorce Dissolution Petition
- Hampshire Probate Court: Divorce Information
- The Judicial Branch of Arizona:
- Jeffrey B. Peltz: I Want a Divorce, But I Don’t Know Where My Spouse Is
Marcy Brinkley has been writing professionally since 2007. Her work has appeared in "Chicken Soup for the Soul," "Texas Health Law Reporter" and the "State Bar of Texas Health Law Section Report." Her degrees include a Bachelor of Science in Nursing; a Master of Business Administration; and a Doctor of Jurisprudence.