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24 Jul 16

Why would a divorce case be dismissed?

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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.

Annulment
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.

Inactivity
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.

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