Retracting a Divorce
By Beverly Bird
Enough couples change their minds about going through with their divorces that most states have built-in legislation to deal with the issue. However, the ease with which you can call a halt to the proceedings depends on how far your divorce has progressed through the court system. No state will force you to go through with a divorce if neither spouse wants to end the marriage.
Lack of Service
After you file your complaint or petition for divorce with the court, you must serve it on your spouse. This is due process. By providing him with a copy of the complaint or petition, you officially let him know you’re seeking a divorce. If you want to retract your divorce after you file your documents, but before you’ve made arrangements to have your spouse served, you can simply do nothing. Don’t follow through with due process. The court will eventually dismiss your case. In legal terms, you’ve failed to prosecute.
After you’ve served your spouse with your divorce papers, the situation changes. He’s now an active participant in the proceedings, so you lose your opportunity to do nothing, at least without risk. If neither you nor your spouse do anything to move the divorce forward, the court will eventually dismiss your case, just as it would if you failed to serve your spouse. However, you might incur a fine in some states for clogging up the court system, and in the meantime, your divorce is still an active litigation. If your spouse changes his mind and decides he wants to proceed with the divorce after all, he can take things into his own hands. He can continue to participate in the divorce, meeting court deadlines for management conferences and other filings. If you do nothing, he’ll get the divorce, most likely on his terms.
Motion to Dismiss
The safest, most surefire way to retract your divorce is to withdraw your complaint by filing a motion with the court to dismiss it. This ends the litigation as though you never started it. This may be simple or more complicated, depending on whether your spouse has responded to your complaint by filing an answer. If he has not, your motion will terminate your case. You’re not leaving the situation in limbo while you wait for the court to dismiss it for you because you failed to prosecute. However, if your spouse has filed answering pleadings to your complaint, some states will require his agreement to dismiss it. If he’s filed a counterclaim, this legally acts as his own complaint for divorce. Even if you dismiss your complaint, your case will move forward based on his counterclaim. In this case, the only way you can retract your divorce is if both you and your spouse file motions to dismiss your individual pleadings.
Read More: How to Answer a Motion to Dismiss
After the Divorce
After your divorce is final, there is no legal way you can retract it or undo it. You’re divorced -- your decree is a final court order. If you want to remain married, you’ll have to remarry. If you want to retract your divorce because you don’t like the court’s trial decision or because you’ve changed your mind about a settlement to which you agreed, you face an uphill legal battle. You can appeal the court’s trial decision, but you must have specific legal grounds on which to do this. Even if you’re successful, this will only change the terms of your decree. The decree will still exist and you’ll still be divorced. If you agreed to a marital settlement, the terms regarding property division usually cannot be undone. You can petition the court to modify the provisions regarding custody or support if you’ve experienced a change of circumstances. However, this doesn't undo or retract your divorce either. It simply alters its conditions.
- Robin Roshkind: How Do You Stop a Divorce if You Change Your Mind?
- Northwest Justice Project: Dismissing Your Petition for Dissolution of Marriage (Divorce) or Domestic Partnership (PDF)
- LegalMatch: Can I Stop My Divorce Proceeding Once It Has Been Started?
- Gregory S. Foreman: Two Unusual Strategies for Encouraging the Opposing Party to Settle
- Vermont Judiciary: Answering the Divorce Complaint and Preparing Your Own Complaint (PDf)
- DadsDivorce.com: Divorce Agreements – Retracting a Decision You Agreed To
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.