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Why would a divorce case be dismissed?

July 24, 2016 Our Blog

Divorce laws differ from state to state, but all states have an overall, consistent behavior for dismissing a divorce case. Here are some of the most common reasons why a divorce case may be dismissed.

If not legally married, there is actually no marriage to dissolve, which is the sole purpose of the divorce. So, upon discovering the parties in a divorce case had never legally married, the court may issue a dismissal. In New York, if it’s determined one of the spouses were already married when they entered the current marriage or a spouse was underage, the judge will automatically dismiss the case. The matter will then be referred for an annulment proceeding, not a divorce.

Voluntary Dismissal
Sometimes a plaintiff will file papers for divorce and, for any number of reasons, will change their minds and request a dismissal. This action is often the result of a reconciliation, but there can be other reasons. Plaintiffs may have decided the timing is wrong and will wait for what they consider to be a better time to file. Divorce cases have voluntarily been dismissed until one of the parties finishes school or a parent wants to wait until children are older. Divorce lawyers have advised clients to hold off because a future business transaction will leave a defendant wealthy and still being married entitles the plaintiff to a portion.

No Service / Want of Prosecution
A want of prosecution is a failure to serve a respondent. Once a divorce case has been filed, the filing spouse has a specific time period to serve the other spouse with divorce papers. In New York, that’s one year. The want of prosecution falls under CPLR Rule 3216 and notes that the dismissal can be granted without prejudice. That gives the plaintiff the opportunity to re-file at a later date.

In New York State, a case will be reviewed to see if any documentation has been filed or activity has been performed to support the matter. If there has been no activity within 12 months of filing, the matter is classified as inactive. The court clerk will notify both parties the case will be dismissed if neither party contacts the court. One of the parties will have 30 days to respond, explaining why the case should stay active. If no one responds, the case will be dismissed.

CPLR Rule 3216 covers the actions required for a divorce proceeding to remain valid or risk being dismissed. The plaintiff must file a petition and serve the defendant. If one spouse is dependent on the other for financial support, that spouse will have to get temporary orders for custody and support to ensure finances for the household and children continue. It is advised that order be requested as soon as possible.

The plaintiff needs to eventually provide proof of service, meaning the defendant was served with a divorce petition. The defendant has to respond before there can be any negotiation, a process the court allows to see if both sides can come to an agreement on how the divorce should be managed. If there is no clear agreement, the divorce goes to trail before an Order of Dissolution is issued, spelling out precisely how property, debt and finances will be handled, as well as the final decision on all issues, including support and custody.

How can I find out what the status of my divorce case is?

Divorce is a hard decision and an even harder process. Be aware that making the decision is only the start of the legal steps that you need to take to end your marriage and legally split with your ex. Staying flexible and enduring the process will save you a lot of worry and upset.

Once You Hire An Attorney and File
Once the filing process has started, both you and your attorney are waiting for a response from your ex. If locating your ex turns out to be a challenge, then getting them served with the papers can cause delays. Other delays may crop up depending on the speed of response from your ex’s attorney. Functionally, until the case moves forward with some sort of action by or connection with your ex, everyone is stuck.

Patience is Critical
Be aware that your attorney is doing their best to build a good settlement for you and any children that may have resulted from the marriage. However, your ex may be stone-walling your attorney, might be impossible to reach, or may simply be ignoring you. Use this time to your advantage. Do not let any delays, intentional or accidental, push you into an emotional state where you say or do anything that will cause problems in the future.

Contact Your Attorney If You’re Concerned
If the latest contact from your attorney was that he’d get back to you within the week but it’s been ten days, call them. If, however, they agreed to call you when they heard from your ex’s attorney and it’s been three days, consider: When your attorney meets with you to re-state that they’ll call you when they hear back from your ex’s attorney, they are working for you, and you will be charged.

Keep Careful Notes of Your Conversations With Your Attorney
Your divorce attorney is aware of the court schedule, the filing requirements and any delay penalties. That being said, they are restricted in how much information they can give you until contacted by your ex or their attorney. You need certainty, and until that contact is made, your attorney can’t offer you any guarantees. Take care of yourself emotionally and be prepared to push some things to the back of your mind so you can focus on what needs doing today. There are points at which your attorney will have to say, “I don’t have any new information for you.” Be certain you have notes of your last conversation so you can confirm where you are if need be.

The Final Say
Ultimately, the Supreme Court of the State of New York handles divorce cases. Before it gets to the Supreme Court of the county of your residence, your attorney and the attorney for your ex need to have constructed a completed set of divorce papers ready for filing. Delays in communication between you and your attorney, your attorney and their attorney, or your ex and their attorney will impact the speed at which you are finally legally divorced.

It is tempting at many points in the divorce process to toss your hands in the air and walk away. For your future and the future of any children from the relationship, hang on to your patience, your temper and your dignity.

Need more information? Speak to one of our NYC matrimonial lawyers today.

How do we stop support orders if the divorce was dismissed?

A divorce is a huge undertaking. People getting a divorce need to decide to divide their property up equitably. They also need to agree on other issues such as issues related to child support and child custody. The process of getting a divorce can take weeks or even several months. During this time, both parties may come to the realization that this is not the right course of action for them. They may realize they would rather reconcile and agree to work out any underlying issues instead. As the process of divorce continued, legal processes may have been set in motion. For example, one party may have been asked to pay child or spousal support to the other party. While a divorce can take time, getting support in place can be surprisingly quick. The process of filing such orders can mean that one party is left paying support to the other party under law.

Temporary Legal Orders

Once the parties have agreed to stop the divorce, they’ll want to head back to court. A support order is what is known as a temporary order. Temporary orders begin when the divorce begins. Temporary orders are highly specific legal documents issued by the court. They are documents that are designed to allow all parties to the procedure to understand what kind of rights and responsibilities they have in place as the divorce case continues to go through the court system. After the divorce concludes, these temporary orders can be replaced with what is known as a final divorce decree. This happens when the divorce is fully concluded.

Many Different Types

There are many different types of temporary orders that can be issued by any court. The court may issue temporary custody orders that provides one parent with temporary joint custody or even temporary sole custody. If the couple has a separation where one party is living in a different space, there can be temporary visitation orders that outline how much time the other parent can spend with their children and how often they can see them. The same is true of what are known as child support and spousal support orders. Before these orders are issued, both parties are generally asked to come to court and present any evidence. Both parties are typically asked to reveal information such as their finances, educational background and ties to the children.

The Decision to Reconcile

A couple may decide to avoid getting a divorce because they have worked things out and do not consider it in their best interests at the present time. They may also decide against a divorce for financial reasons. Under these circumstances, both parties may need to head back to court in order to fully clarify matters and avoid any kind of legal problems going forward. The court will listen to the changed circumstances and make sure any new agreements are done to the satisfaction of both parties. A lawyer will make a motion to get the orders dismissed. The court system will agree to dismiss any orders related to the case. This dismissal has the force of law. It should go into place immediately. In many cases, these kinds of orders are taken directly out of a person’s paycheck. In that instance, it’s best for the employee to contact their human resources contact person. They may need to work closely with payroll to make sure that such funds are not being withdrawn going forward. Anyone looking to make such changes should bring all related documentation with them to confirm that circumstances have changed and the orders are no longer in effect.

A Separation

While couples may decide against a divorce, they may ultimately decide that a separation is order instead. Many states allow couples to have a legal separation. They also allow states to decide what kind of financial arrangements they would like to keep in place. A divorce is not the same thing as a legal separation. In that case, the couples may cancel the divorce but keep up separate residences. A couple might wish to work out exactly what kind of fiscal arrangements they wish to keep in place as the separation remains in place. In that instance, it’s best to seek out help from a lawyer. These arrangements can be different then those intended if there’s going to be divorce. The lawyer can help by making sure any necessary legal modifications are made to the former couple’s mutual satisfaction



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