Could our divorce case be dismissed?

Q:

Could our divorce case be dismissed?

A:

A divorce is the judicial declaration to terminate a marriage. After the divorce is finalized, the bonds of matrimony are severed. During the divorce process, the court will finalize issues of spousal support, child support, child visitation and the distribution of property.

The legal steps and requirements to divorce vary by state. The process to dismiss a case may also vary slightly. For specific questions regarding the reasons and steps for dismissal in your state, you will need to talk to a family law attorney who is familiar with your state’s laws. General reasons for a divorce dismissal, however, will be discussed below.

1. Dismissal Due to Reconciliation

Most states have provisions that allow couples the opportunity to delay their divorce proceedings for a specified time if they have decided to attempt reconciliation. For example, in Wisconsin, couples may suspend their divorce at any time prior to the judgment if both parties agree to the suspension. The couple is given 90 days to reconcile. If the couple decides to reconcile, they may file a stipulation and order for dismissal.

In other states, such as Arizona, couples have up to four months to reconcile. Some states, such as Illinois, give couples six months to reconcile.

2. Dismissal for Want of Prosecution (DWOP)

Divorce cases can also be dismissed for want of prosecution or inactivity. The time allowed prior to dismissal of the case will vary by state. The goal of dismissing inactive cases is to ensure that the court’s calendar is clear. Prior to a dismissal for want of prosecution, the spouses should be notified or warned by the court. Generally, the court will allow the parties a specified number of days (i.e., 30 days) to respond and provide information.

There are a variety of reasons for which a case can be dismissed for inactivity:

  • A spouse was never located and divorce papers were never served.
  • The parties missed hearing dates.
  • Papers were served on a spouse but the receiving spouse failed to file a response.
  • Deadlines for filing the necessary paperwork were missed.

There are several steps to take to avoid dismissal for inactivity. For example, if you have filed for divorce but your spouse has failed to respond, instead of doing nothing, you should ask the court for a default judgment. If your spouse has not responded to requests for information, you can file a motion to compel discovery.

3. The Marriage Is Annulled

Another reason why a divorce could be dismissed is because the court has determined that the marriage was not valid, and there is no marriage to dissolve. A marriage can be ended by annulment or by divorce. While divorce dissolves a marriage, an annulment completely erases it. In fact, an annulment means that the marriage was never legally valid.

To dismiss a divorce and request an annulment, either the husband or the wife must prove that there are valid grounds for an annulment and that the marriage did not exist. Common reasons for an annulment include bigamy, fraud, forced consent, mental illness, mental incapacity, the inability to consummate the marriage, it's a marriage prohibited by law, or an underage marriage. If any of those listed is proven, the court can decide to dismiss the divorce case and allow the filing party to refile for an annulment.

4. Voluntary Dismissal

A divorce action can generally be dismissed at any time prior to the judge issuing a final divorce decree. If both parties agree to the dismissal, the process to request a dismissal is fairly straightforward. For example, in the state of Florida, the couple would simply need to file a notice of voluntary dismissal with the court in which the case was filed.

5. Dismissed Due to a Technical Reason

Finally, a divorce may also be dismissed for technical reasons at any time prior to a judge issuing a final decree. For example, the court may decide to dismiss the case if the parties failed to follow proper procedure, they made mistakes filing the court documents, they failed to properly serve the documents to the appropriate party, or they failed to pay the divorce filing fees.

What should I do if my divorce was dismissed?

Whether you need to do anything after your divorce case was dismissed will depend on whether you want a divorce and the reason why it was dismissed. For example, if your case was dismissed because you and your spouse were attempting reconciliation, or if you have decided to stay together, you do not need to take any further action.

If, however, the case was dismissed due to inactivity and you want to proceed with the divorce, you can either attempt to have the case re-opened through filing a motion to re-open, or you might have to re-file the case and start over.

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