Being an experienced family law attorney practicing in the Inland Empire, throughout San Bernardino County, Riverside County, Los Angeles County, and Orange County, I speak with many people about the divorce process. I consult with hundreds of people throughout the year and often people have similar questions. One question a potential client often asks is whether or not he or she can stop their divorce. There are various reasons why someone would want to stop their divorce whether it’s because of reconciliation, reconsideration, or timing. Whatever the reason is, there are certain situations in which the divorce process cannot be stopped and there are also several ways end the divorce process.
Right to Marry … and Divorce
Throughout the United States, there is a right to marry and to divorce. The courts cannot prevent a person who wants a divorce from being divorced. Therefore, if you are a party to a case in which the other party wants a divorce, unfortunately, you will have to go through the process no matter what. While family law cases are very unique, given it is often the intersection of many areas of law – real estate, tax, community property, domestic violence, child custody and visitation – it is often a highly emotional.
Having an experienced attorney to walk you through the emotional issues, legal issues, and realistic issues is extremely important. As I have discussed before, when you speak with an attorney regarding your case, make sure the attorney is a good fit for you and your specific needs.
Request for Dismissal Before a Response
If you file the Petition for Dissolution and after some time, you are reconsidering your decision, you can stop the divorce case by filing a Request for Dismissal (CIV-110) and a Notice of Entry of Dismissal (CIV-120). The Request is a simple form in which you will let the court know you want your case dismissed without prejudice, which means you can always refile your case in the future, should circumstances change.
When I have a client in my office mention they are considering dismissing the case, I always ask they consider three things before making a final decision. First, if you dismiss your case, you are losing your “start date”. As mentioned in previous blog post, there is a timeframe for getting a divorce. Once a Respondent is served with the Petition for Dissolution, a clock begins. The earliest a person can get divorced in California is 6 months, plus 1 day, after the date the Petitioner serves the Summons and Petition for Dissolution on the Respondent or the date the Respondent first appears in court. So, if you have already served the Respondent, your clock has started. If you dismiss your case, you lose the time you have already invested. Second, when you file for divorce, you pay an initial filing fee. The initial filing fee statewide is $435.00, but each county has a fee schedule which will reflect any variation in fees for local charges. If you dismiss your case, you lose your investment of the filing fee, at a minimum. Finally, and likely most important, what are the legal ramifications of dismissing your case? Time in family law effects many issues – when are assets acquired, when is debt incurred, when are wages earned, when is date of separation? Dismissing a case can have detrimental effects on the potential outcome of asset and debt division or even a spousal support order. Every case is very unique and so, before dismissing a case, speak with an experience family law attorney who can walk you through scenarios which may arise if you decide to dismiss your case and potentially give you other options, if needed.
Request for Dismissal After a Response
In other situations, which often comes into my office, two parties want to dismiss their divorce case after the Petitioner has filed the Petition for Dissolution and the Respondent has filed a Response to the Petition for Dissolution. Maybe the parties are reconciling or they have other reasons for wishing to dismiss the case. Whatever the reason may be, the process to end the case is similar, with one additional step. The Petitioner would file the Request for Dismissal (CIV-110) and a Notice of Entry of Dismissal (CIV-120). However, the Respondent will have to agree to the dismissal and actually sign the Request for Dismissal before it is filed.
My above warnings would be reiterated even in this case. If you file a request for dismissal, you are losing the time you have invested and you are losing the money you have invested. Also, you may be losing a legal argument because of dismissal. Before agreeing to a dismissal, or even requesting one, make sure you review all potential effects of the dismissal of your case by speaking with an experience family law attorney.
Failure to Serve
Once you file a Petition for Dissolution, a Petitioner has three years to serve the Respondent with the Petition for Dissolution and accompanying documents. Close to the three-year mark, if a Proof of Service of Summons has not been filed in your case, the court will generally set a Case Management Hearing to find out the status of service and status of the case. When I have been in court, I often seen self-represented litigants in court for this very reason. Often people do not realize that there is work to be done after filing the Petition for Dissolution. I have also seen many people try to explain to a judge that they are experiencing difficulty in serving the Respondent, because the person is out of state or out of the country or just has disappeared. Whatever the case may be, failure to serve the Respondent with the Summons and Petition for Dissolution is a guaranteed way to have your divorce process stopped. It may not be what you want, but it will occur.
Therefore, if you want your divorce to move forward, do not let failure to serve the Respondent be a reason to stop the divorce process in California.
Failure to Prosecute
Similar to failure to serve, your family law case may come to an end for “failure to prosecute.” Failure to prosecute occurs when the Petitioner files a Petition for Dissolution and accompanying documents and the Respondent is served with the documents. However, after service, the parties sit on the case and do not complete any of the required steps to move the case forward or obtain any orders. In layman’s terms, “failure to prosecute” means failure to move the case forward to completion. Be aware that when you do have certain orders, your case cannot be dismissed. Close to the five-year mark, if movement has not occurred, the court will generally set a Case Management Hearing to assess the status of the case. As alluded to, there are certain exceptions for stagnant cases, but, generally, a court can dismiss a case for failure to prosecute.
Most people representing themselves in family court or people considering filing for divorce who I talk to do not realize that once you file a Petition for Dissolution, more work has to be done in order to finalize your case. To avoid the court dismissing your case, make sure you understand what is required of you and what documents need to be filed. Often times, the initial Petition for Dissolution is overwhelming from the sheer amount of information that the court requires, not to mention the emotional aspect which goes along with family law case. It is best practice to consult with an attorney – and an experienced family law attorney – to understand all of the issues that can come up in your unique case. You can call into our office at 909-466-5575 for a free consultation regarding your family law matter so that we can walk you through the various ways in which your divorce case can be stopped – either by choice or not.