The Inception of a Divorce—Filing and Responding
Although procedures can vary from state to state, initiating a divorce always involves a spouse filing a petition (sometimes called a “complaint”) with the court. The other spouse then has a certain period of time to respond or answer the petition, normally around 30 days after receiving the paperwork (depending on your state).
There are various choices available to the non-filing spouse (known as a “respondent” or “defendant”) regarding the divorce petition:
- If the respondent fails to respond, the spouse who filed the divorce (the "petitioner") will normally request that the court enter a “default,” and the divorce will proceed without the respondent’s participation.
- If there’s no objection to the reasons for the divorce (“grounds”), but the respondent wants to participate regarding other issues, like support, custody and visitation (parenting time), and property distribution, they can file an “appearance.”
- If there is an objection to the divorce grounds or any of the requests in the petition, the respondent will need to file an answer.
- Finally, the respondent can file a “counter-claim” with the answer. In effect, this allows the respondent to also file for a divorce, based on grounds set out in the counter-claim.
What’s Involved in Stopping a Divorce Case?
If you decide you no longer want to proceed with your divorce, there are procedures you must follow to have the case removed from the court docket. The steps involved will depend on the status of the case when you make the request.
Ordinarily, if you want to withdraw the divorce petition before your spouse has responded, you need do nothing more than file a request for a voluntary dismissal. You would usually stipulate that the request is “without prejudice,” which means you’re reserving the right to file a new divorce petition at a later date. In most—if not all—states, a judge doesn’t need to sign off on a voluntary dismissal at this stage of the proceedings. Submitting the request on the proper court form is basically all that’s required.
If your spouse has already filed a response to the divorce complaint, you can still request a voluntary dismissal, but in this situation, you’ll need your spouse’s approval. This is often accomplished by both of you signing a “stipulation of dismissal,” and filing that document with the court. If your spouse objects, however, a judge will have to make a decision on your request after reviewing the arguments for and against it. Even if there is an objection, if your application for dismissal comes early enough in the divorce process, more often than not a judge will grant your request.
Note that once your case is dismissed, it’s no longer in the court system. So if you decide to proceed with divorce at a later time, you can’t simply pick up where you left off. You’ll have to start from scratch.
You should also be aware that if your spouse filed a counter-claim in the case, dismissing your petition will not result in dismissal of the counter-claim. That would only happen if your spouse specifically requests it. Barring that, the case will move forward.
Can a Judge Deny My Request for Dismissal?
Because of the myriad of elements involved in a contested divorce, completing the case can frequently take a year or more. And financial expenditures will probably be significant. Attorneys’ fees, court costs, and expenses relating to expert witnesses (accountants, appraisers, and so on) tend to add up quickly.
Although you can ask a judge to dismiss your case up to the time the court enters the final judgment, if you’re well into the process, and your spouse objects to your request, a court may be less inclined to grant it. After the money, time, and emotional capital your spouse has spent on the divorce, a judge may find it unfair to allow you to stop the proceedings.
Another scenario that could lead to a court denying your dismissal application—no matter what stage of the proceedings you’re in—would be where there are allegations of violence or other abuse, including child neglect. If judges believe dismissing the case might leave a child or spouse open to harm, they can deny the application. This keeps the matter in the court’s jurisdiction, and enables a judge to take the measures necessary to protect the vulnerable spouse or child. If the court is unsure, it can withhold a decision until social services professionals interview one or both of the spouses. The purpose of this would be to assess any potential for injury. If a non-filing spouse consents to the dismissal, social services personnel would also seek to determine whether the consent is voluntary and not the result of coercion.
Choosing to stop your divorce is a serious decision. To make sure you’re aware of your rights and responsibilities, it's important to consult with a knowledgeable and reputable divorce lawyer.