Dismissing a Divorce Case

Sometimes couples planning to divorce reconcile after filing the action but before the court moves on it. The couple can, if they agree, cancel the divorce by asking the court to dismiss the divorce after the papers have been filed. Many times, they can request a dismissal form from the county clerk anytime before a judgment has been entered. If no response has been filed, the petitioner alone can file the dismissal form. If a response has been filed, both spouses must sign the dismissal form.

Any time before a judge issues a final divorce decree, the petitioner may petition the court to withdraw a divorce request by filing a motion to dismiss without prejudice. Each jurisdiction has its own process for filing such a motion, and the court may have a form that needs to be filled out, or it may simply require a letter expressing the desire to withdraw the divorce petition.

The petitioner should verify that the other spouse did not respond to the divorce petition. If the defendant has filed no documents other than a notice of appearance, the petitioner may unilaterally withdraw the divorce petition. However, if an answer or a counterclaim has been filed, the divorce will continue on unless the petitioner also withdraws.

In jurisdictions where a form is used, the party requesting dismissal should indicate on the form that the dismissal is of the entire action and of all parties. On the form, he or she indicates that the dismissal is with prejudice; this means the case cannot be reinstated. If he or she selects without prejudice, this means the case can be reinstated in the future. Both spouses sign the request for dismissal.

The spouse who has been served a petition for divorce (the one who is being sued for divorce) has no legal power to interrupt the process. He or she may only file an answer and defend himself or herself in the proceedings. However, if both parties are open to stopping the divorce process, the spouse who filed may take steps to halt legal action.

Most states have a waiting period between the filing of a petition to divorce and the finalization; the waiting period encourages possible reconsideration and reconciliation. "The spouses would then withdraw their divorce petition or file a form as a notice of revocation to stop the divorce proceeding," says Legal Match, a professional service that matches attorneys and clients.

Here is the process of dismissing a divorce petition in some jurisdictions:

  • The plaintiff prepares a dismissal motion. Both the parties sign this motion. The motion will be the same as the original divorce petition with the court’s name, name of the spouses and number of the cause. Both parties sign the motion if they are both in agreement.
  • The plaintiff prepares a dismissal order. The content should be the same as the motion. In the order, it is indicated that the court has received the dismissal motion and that is has either been granted by the court or that a hearing has been set. Keep space for the judge to sign and write the date of the order.
  • The order and motion are filed with the clerk, where the original petition was filed.
  • Wait for the court to return the order. If the other party signs the motion, then the court will sign the dismissal and return the order. If the spouse rejects to sign the motion, then the judge will set the hearing of the motion.
  • Be present at the hearing if required. Explain to the judge the reason for the request to dismiss the petition. If the other party does not appear, or appears but does not raise any objection to the dismissal, then the judge will generally grant the motion and sign the order of dismissal.

If no form is required, the petitioner should ask if there is a particular format for the letter requesting a withdrawal of the petition. 

The form or the letter will include the names and case number of the action. No reason for the withdrawal must be stated. The letter or form is signed and dated.

Most jurisdictions do not charge fees when such motions are filed, but the petitioner will not be able to recover the fees paid for the divorce filing. If the defendant spouse has filed an answer or a counterclaim, he or she must also submit a motion to dismiss. 

According to Nolo's Essential Guide to Divorce by Emily Doskow, the divorce and civil procedure statutes across the country outline similar processes to dismiss a marriage dissolution case. The ease of the dismissal depends upon the state of the case. If the defendant spouse has yet to file an answer or response, the dismissal is automatic. If he or she has filed a response, but not a counter-petition, the court is likely to dismiss. If the defendant spouse has filed an answer and a counter-petition, a dismissal will not occur unless he or she agrees.

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