Motion to Reinstate a Divorce Complaint
By Beverly Bird
Deadlines and mandatory court filings can complicate the divorce process, especially when you’re representing yourself and you're unsure of the rules. It’s surprisingly easy to take a misstep that might result in the court throwing out your case by dismissing your complaint. Fortunately, you can usually remedy the situation very easily by correcting your error and filing a motion with the court to reinstate it.
Causes for Dismissal
Most commonly, the court will dismiss a divorce complaint when the plaintiff -- the spouse who files the complaint and initiates the divorce action -- fails to prosecute the case after beginning it. You can fail to prosecute in any number of ways. You might have neglected to officially serve your spouse with a copy of your complaint. If you did serve him, you might have forgotten to file proof of that with the court. Alternatively, you might have overlooked filing some mandatory pleadings, such as the financial disclosure form that most state courts require. Your spouse can also file a motion with the court, asking for dismissal of your complaint. This might happen if you don't respond to his discovery demands. For example, in most contested divorces, spouses will serve interrogatories on each other. These are a list of questions requiring written answers under oath. If you fail to answer the questions and return them to your spouse or his attorney within a certain time frame, he can ask the court to dismiss your complaint.
Motion to Reinstate
If the court dismisses your complaint because you failed to prosecute, you’ll usually receive an official order terminating your case. You have the right to ask the court to reconsider by filing a motion. Most state courts provide simple forms for this that you can download from their websites or other legal websites. Even though the court terminated your divorce action, you should file your paperwork using the same docket or case number the court wrote on your complaint when you first filed it because your motion relates to that case. You must serve a copy of your motion on your spouse, making sure he officially receives it. He has the right to file an answer and to object. The deadline for motions to reinstate complaints vary from state to state, but you may have plenty of time. For example, in New Jersey, you have a year. However, this period begins from the date you filed your complaint not the date it was dismissed.
The court will probably deny your motion if you haven’t fixed the error you made that resulted in your complaint’s dismissal. If you failed to file proof that you served your spouse or other mandatory documents, you must explain to the court why you didn’t do so. Typically, you must also attach those documents to your motion so the court can file them simultaneously with an order reopening your case. You can’t file them before you make your motion for reinstatement because your case is no longer open. The court generally can’t accept documents relating to it, except your motion to reinstate.
If your spouse files a motion with the court asking for dismissal of your complaint because you failed to cooperate with discovery, you’ll receive a copy of his motion. Usually, you can simply give him or his attorney the discovery or other documentation they’re looking for. You can then file a response to his motion, telling the court that you’ve now done what you were supposed to do. If the court dismisses your complaint and denies your motion for reinstatement, this doesn’t mean you have to remain married. You always have the right to file a new complaint for divorce and start the process over again.
- FindLaw: Superior Court of New Jersey, Chancery Division – Higgins v. Higgins
- Judicial Branch of Arizona: Instructions – How to Fill Out a “Motion to Reinstate” (PDF)
- Divorcenet.com: New York Divorce Motion Practice FAQs
- The Modern Woman’s Divorce Guide: Discovery Tools for Divorce, Dissolution and Separation Cases
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.