Dismissing A Divorce

I Don’t Want a Divorce


Author: Jeff Anderson

What if you file for divorce, and then you and your spouse reconcile? It’s not so uncommon. In fact, after a divorce has been filed, couples sometimes choose to enroll in marriage counseling in efforts to save their marriage. Sometimes they decide they’ve made a mistake and don’t want their marriage to end. Sometimes there could be a thousand reasons to not go through with a divorce.

This leads to an important question:

Can a divorce be dismissed if the spouses change their minds?

The answer is yes! If both parties have filed pleadings (paperwork) asking for some relief, then it will take both of them to get it dismissed. If only one party has filed something with the Court, then it only takes that one person to dismiss the action.

This is called a Nonsuit. At any time before the introduction of all the plaintiff’s evidence, other than rebuttal evidence, the plaintiff (we call them petitioners) may dismiss a case, or take a nonsuit. Thus, the Petitioner in a divorce suit may take a nonsuit at any time before resting his or her case-in-chief at a trial. But if the other side has asked for relief as well, both sides are locked into the divorce unless they both agree to nonsuit it.

So, how is this done? Well, to nonsuit your divorce, you would file a document called a Notice of Nonsuit, and the Judge would then sign an Order Granting Nonsuit if both parties agree. The Notice of Nonsuit becomes a Final Order, meaning that if either party decided they did want to proceed with the divorce in the future, then one of them would have to file for divorce a second time.

However, this begs the next questions:

What if both parties to the divorce do not agree?What if only one party wants to dismiss the action and the other party has filed documents asking for some kind of relief?

The divorce will remain pending. Once both parties file pleadings asking for affirmative relief, they are both locked into the divorce unless they both agree to dismiss it. What can be even more dangerous is dismissing under these circumstances if the other spouse has asked for attorney fees. Since that person still has their affirmative relief pending with the Court, the Judge could find that the party who dismissed should be ordered to pay the attorney fees of the spouse who did not dismiss their action.

Another route to dismiss a divorce – other than a nonsuit – is called a Dismissal for Want of Prosecution (DWOP). This essentially means that if the Court does not see that the case is being pursued, it will eventually set the case for dismissal. Judges do not want a case sitting on the docket for years with nothing happening.   So they will set the case for a dismissal hearing. If no one shows up for the hearing, the Court will dismiss the case. If the parties do show up, the Court will likely set the case for trial, order mediation, or re-set the dismissal hearing.