In most relationships, divorce is an extreme measure used only when no other solution has worked. Deciding to pursue divorce is a heavy decision, and one that may seem irreversible. However, the divorce process is designed in a way that allows you to cancel your divorce petition should you have a change of heart. There are many reasons you might be having second thoughts. Perhaps you and your spouse have made substantial progress on problem areas in the relationship and have a renewed faith in your marriage. Or maybe you intend to remain separated but need to hold off on beginning divorce proceedings until your children reach a certain age, your spouse graduates from medical school, or when you both earn enough to support two households. Whatever the reason may be, how do you stop a divorce from going forward?
North Carolina is one of the most generous states when it comes to a plaintiff’s right to voluntarily dismiss a legal action. North Carolina also makes it difficult to get divorced on a whim. Between the six month state residency requirement and the required one year separation period, there is ample time for a couple to contemplate the relationship and reconsider their marriage before even being able to file a divorce petition or divorce complaint. In this article we will discuss how exactly you can voluntarily withdraw your divorce lawsuit, step by step, but first let’s discuss the deadline for such a motion.
Deadline for voluntary dismissal and stopping a divorce
During the mandatory one year separation period and six month North Carolina state residency requirement, a couple can reconcile and reunify without any legal requirements or legal action since a petition for divorce was never filed. Even after one year of living apart, if a divorce action has been filed, there is still a way of withdrawing your request should you wish to remain married. The law states a petitioner (the spouse filing the initial petition for divorce) can dismiss his or her case “by filing a notice of dismissal at any time before the plaintiff (petitioner) rests his case”. This is far more time to withdraw petitions compared to other states. The North Carolina Court system has a form document that can be used, AOC-CV-405.
The phrase “rests his case” essentially means the point at which the petitioning spouse has presented his or her argument. In divorce proceedings, this would be by the end of the divorce hearing when you have presented any documents or witnesses, made your argument, and turned over any evidence you may possess.
Two important notes on voluntary dismissal
There are two important caveats of voluntary dismissal and how to stop a divorce when it comes to divorce proceedings. First, the reality that one spouse’s dismissal of the divorce petition does not necessarily terminate the proceedings altogether. In other words, if only one spouse wishes to cancel the divorce action and remain married, that party is permitted to withdraw any claims he or she has filed but it will not have an impact on any cross-petitions of the other spouse that might exist. In order for the entire case to be voluntarily dismissed, both spouses must be in agreement and present the motion for voluntary dismissal of all claims together.
Second, voluntary dismissal does not prohibit you from filing for divorce later. Should you later desire to pursue divorce, however, you will most likely have to start from square one. This depends on whether the dismissal is granted with or without prejudice. If the case is dismissed with prejudice then you must start the entire divorce process over again. If the case is dismissed without prejudice it essentially means you can re-open the current case within one year. (But, be aware, if you and your spouse start living together again, you will need another year of separation to occur.)
Three steps to voluntarily dismiss your divorce action
- Draft a motion for voluntary dismissal. This can be done by the spouse who initiated the divorce, known as the plaintiff or petitioner, or by both spouses together.
- File the motion for voluntary dismissal with the North Carolina county court where the action was filed. If both parties are in agreement about the withdrawal, the court will dismiss the entire divorce action. Remember, if only the petitioner moves for voluntary dismissal, then only the petitioner’s petition for dissolution of marriage is dismissed. Any cross-petition for dissolution that may have been filed by the other party will remain.
- Pay any court costs and fees already incurred for the divorce action up to the date the motion is granted. If the motion is joint, both parties will share these expenses. If the motion is filed by the petitioner only these expenses will be paid by that party alone. Each spouse still remains responsible for their respective attorneys’ fees.
