When can a Divorce be Withdrawn or Discontinued in New York?

Posted By Max Soni, Uncategorized On May 14, 2018

Deciding to get a divorce is a difficult and emotional decision, and the process isn’t an easy one to go through. Mediation is helpful, but if you have to go the traditional litigation route, the process can be painful and lengthy. What happens when you decide you no longer want to be divorced, though? The answer depends on how far along you are in the process. If you and your spouse have decided to work on your relationship, you may want to withdraw or discontinue your divorce. Here’s what you need to know about the process. Also keep in mind that it’s always to have an experienced lawyer on your side, especially in cases like these that don’t always have clear-cut answers.
Withdrawing or Discontinuing a Divorce
There are a number of situations where it’s possible to wither withdraw or discontinue your divorce. You’ll need to do this before the divorce is finalized, which means before both parties sign the judgment. The process for doing this is explained in the NY Civil Practice Law and Rules 3217, as well as the case law that corresponds to and interprets it. This may be complex to understand, though.
According to the law, general civil actions, which include divorces, do not require an order if there wasn’t any responsive pleading served. When responsive pleading is required, the divorce can be discontinued 20 days after the original pleading. Alternatively, both parties will need to make a stipulation of continuance (or a court order for this will have to be made). There are variations to this, though, based on things like litigation and fairness.
Divorces in New York State
It’s important to know how this all applies to your divorce in New York. When you want to get a divorce, the process is started when you file a Summons with Notice document. You may also opt to serve a complaint with this document, though it’s not required at first. Eventually, though, you will need to draft and serve a complaint. This doesn’t always happen quickly, though, and sometimes it only takes place right before the submission of the judgement. If a complaint hasn’t been drafted and served, it’s easy for the person who initiated the divorce to withdraw it. However, if a complain has been served, and if the defendant answered the complaint, the only way for the divorce to be withdrawn is via a stipulation that both parties sign, or by a court order.
There’s another situation that may occur, though, but it’s less common. Sometimes, courts find that the person who initiated the divorce also waived their right to withdraw if there were lengthy proceedings. An example of this is the case of Minkow versus Metelka. In this case, there were several divorce court proceedings and both parties waived their right to discontinue the divorce. Even though the parties did not serve a complaint, they opted to waive their discontinuance right at the Preliminary Conference. Even if they wanted to discontinue their divorce, they wouldn’t be able to because of the waiver.
Here’s another situation to consider: a couple puts together and executes a divorce package, with the help of their divorce lawyer or their mediator. It is not yet approved by the court. In this divorce package, there are both a Summons and a Complaint served. The defendant decides to waive their right to answer the complaint, but they do opt to consent to the divorce. You’re probably wondering if at this point the plaintiff can withdraw the divorce and discontinue it, even without an agreement or a court order.
This is a type of situation that occurs regardless of how the divorce package is put together (for example, through litigation or mediation). Basically, the question is this: if a complaint is served, but an answer wasn’t served, is it possible for the divorce to be withdrawn even without a court order or a stipulation? Unfortunately, there’s no direct answer, because the answer depends on different factors.
In some cases, there’s a question of whether or not an answer (also called a responsive pleading) is necessary in the divorce. While there are two sides to this argument, most of the time the decision is based on if it would be fair for a withdrawal to be allowed based on the case’s specific circumstances, assuming an answer hadn’t been served.
One of the main determining factors is how much litigation occurred so far. Sometimes, withdrawal isn’t allowed if there have already been lengthy court proceedings and litigation. However, if there has not been a lot of litigation by a certain part, it’s possible that a withdrawal will be allowed. There’s also a question of what is fair to the other party. In this type of case, the specifics of the litigation will be considered when making the final decision.
Contact a Divorce Lawyer
Do you want to withdraw or discontinue your divorce in New York? Contact our Long Island divorce lawyers today. We’ll help you learn about the process and get started. Often, situations regarding withdrawal and discontinuing a divorce are in the gray area and open to interpretation, making it even more important to work with an experienced attorney.