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 best 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However, if a complain has been served, and if the defendant answered the complaint, the only way for the divorce to be withdrawn is via a stipulation that both parties sign, or by a court order.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.
Divorce is a complicated matter, and it’s made more complicated when both parties decide they want to discontinue or withdraw the divorce petition in New York. New York law allows a couple to discontinue a divorce petition, but there are several factors, laws, and stipulations involved in making this happen. It’s not as simple as making a quick phone call to the Clerk of Court to say you’d like to cancel your subscription to the divorce you wanted. It’s more complex, it requires a specific process, and it’s not something any court takes lightly.
While most New York courts prefer to see couples work through their issues rather than end their marriage, there are some situations in which the court is less likely to allow this to happen without a fight. When one party alleges abuse, when one party is harming the other, or when the dismissal of a divorce proceeding is thought to be the result of coercion, it’s more difficult to withdraw or discontinue a divorce. If you truly believe you can and want to make your marriage work, it’s possible to put an end to the divorce process so long as there are no signatures on the judgment.
Can I cancel my divorce in New York before my spouse is served?
The short answer is yes, you can cancel your divorce. If you file a Notice of Summons with your local Clerk of Court, you file a paper that dictates you want a divorce. This paperwork has your name and personal information, and it has the name and personal information of your spouse. It states the reason you’d like to end your marriage, and it states the specifics you are asking for when your divorce continues.
Once this paperwork is filed, the court makes it official and sends a process server to your spouse’s home or work to serve them the divorce papers. The papers are not considered official until they’ve been served and accepted by the person named in the divorce. If you file for divorce and change your mind prior to the Notice of Summons being served to your spouse, you might be able to petition the court to cancel or discontinue the summons without serving it. Your spouse will never know you filed for divorce.
What happens if my spouse is served and I change my mind after?
If your spouse is served a Notice of Summons by the court, you cannot withdraw your decision to file for divorce of your own accord. According to New York Civil Practice Law and Rules 3217, you may file for a petition to withdraw or discontinue the process of a divorce, but only if you have the signature of your spouse in the right frame of mind.
Once the paperwork has been served, you waive your right to cancel the process on your own. If you’d like to work on your marriage, you must speak to your spouse, come to an agreement, and you must both approach the court to withdraw the documentation to stop the divorce. You must both be in the right frame of mind, you must not coerce your spouse into doing this, and you must both agree with full knowledge of what is happening. Signatures and a witness are required.
Discontinuing Your Divorce
The law is complex in New York, and that means there might not be a real answer to any question until it’s been asked. If you want to get a divorce and you go through the entire process only to change your mind a day before your divorce is finalized, speak to your attorney. No divorce is finalized in New York until the divorce petition is signed, sealed, stamped, and approved by a judge in a court of law. If this has yet to happen, there is still a chance you can have your divorce petition withdrawn.
You won’t know unless you ask. It is important to note using an attorney to help you through this process is the best situation. Most divorces are a little more complex, and they require knowledge and legal expertise. Not everyone can go through an uncontested, simple divorce in which they handle their issues fairly and on their own. This means an attorney can help. An attorney can also help with the discontinuance of a divorce, too.
If you’re in the market for a divorce, be sure it’s what you want. Ask yourself if you can still see your future with your spouse, if you really want to end your marriage, and if there is any possibility you can work things out. If you cannot see yourself working things out, move forward. Sometimes you’re right in wanting to end things, and sometimes you need the clarity filing for and going through this process requires. It’s not always easy, but an attorney can help you answer your questions.