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When a couple decides to divorce, they agree to severe their relationship legally. This requires a complicated court process, especially when children and marital property are involved. Once a petition for divorce is filed, it typically takes several months to complete. There are some instances where a divorce case could be dismissed before a judgement from the court is issued. Below are some instances in which a divorce case may be dismissed.
Withdrawal From The Petitioner
A divorce case may be dismissed if the person who filed for divorce withdraws the request. This can be done if the respondent did not answer the divorce petition. In this instance, the party asking for the divorce files a formal request to withdraw the divorce petition. If the other party in the divorce filed an answer to the original divorce petition, both parties must sign the withdrawal request at the courthouse. A voluntary dismissal can only be obtained if a judgement has not been entered in the case.
The court may move to dismiss a divorce case if no activity has been made in a certain period of time, which is typically one year from the filing date. In most states, both parties involved in a divorce must make a sincere effort to keep the case moving toward resolution. If this is not done, the court can dismiss the case. Before dismissal, the court must notify both parties involved.
Improper Filing Procedures
Couples who want to divorce must file the petition for divorce in the proper county where they reside. However, the court system places certain restrictions when it comes to jurisdiction. If the couple filing for divorce has moved from state-to-state or has lived in numerous counties in one state, they may accidentally file the petition in the wrong county. A divorce petition may also be dismissed if the couple has filed for divorce in another county or state.
When Can A Divorce Petition Not Be Dismissed?
There are certain instances in which a divorce petition cannot be withdrawn or dismissed. Once the case has made it to a certain point, it cannot be altered. Some instances in which a divorce case cannot be dismissed by the court include:
- A Final Judgement Has Already Been Entered
- There Is An Order For Child Support
- A Hearing For A Protective Order Is Pending
- A Protective Order Is Already In Place
- An Order For Spousal Support Has Been Entered
- A Hearing Date Has Been Set Forth In Court
Can I Refile For Divorce If My Case Was Dismissed?
The answer to this question depends on the laws in the state where you live. However, in most states you can refile a petition for divorce after having it voluntarily dismissed by paying an additional filing fee. All of the paperwork regarding the pleadings must be done again at the time of refiling. If the divorce case was dismissed with prejudice, then it cannot be refiled.
The laws regarding divorce in family court can be difficult to understand. It is often frustrating for both parties to weave their way through the legal process. If your divorce case was dismissed and you wish to refile, contact an attorney for advice. An attorney who is experienced in family law can review your case and the documents filed to determine why your case was dismissed. He can assist you in filing new documents if your case can be refiled. Hiring an attorney to help you through this trying time may lessen the stress associated with complicated family issues and help you move toward a brighter future.
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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.
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.
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.