How to Stop a Divorce After the Papers Have Been Filed

By Ronna L. DeLoe, Esq.

How to Stop a Divorce After the Papers Have Been Filed

By Ronna L. DeLoe, Esq.

If you received divorce papers, you probably think there's nothing you can do to stop the process once the papers have been filed. That's true in many instances, but not all, as there could be loopholes. Sometimes the divorce won't go through for procedural reasons or the party who filed for divorce could withdraw it. The judge could also throw out the case at various stages of the proceeding. While stopping a divorce doesn't happen often, it is sometimes possible, such as in the following circumstances.

Jurisdictional Defects

Each state has requirements that people must meet before filing for divorce. If your spouse filed for divorce and didn't meet the residency requirements, the judge will dismiss the case without prejudice, which means your spouse can refile once they meet the requirements.

Likewise, if you weren't served properly, the court will dismiss the case if you bring the improper service to the court's attention. Most states require “in-hand" delivery of divorce papers, and if that didn't happen, that's improper service.

If, however, you refuse to accept the papers, in many states the process server or sheriff can throw the papers at your feet. If you avoid service, the court can rule that your spouse can use another form of service, so you'll eventually be served. Improper service, though, occurs where service is defective.

Filing in the Wrong Court

Another type of jurisdictional defect occurs when your spouse files for divorce in the wrong county. Although the court will usually dismiss the case, meaning your spouse would have to start over, it may also transfer it to the appropriate county.

Often, people file in the wrong state. When people have moved around a lot, it can be difficult to determine which state has jurisdiction of the divorce. If your spouse filed the divorce petition, also sometimes referred to as a divorce complaint, in the wrong state, the court will dismiss the case. Dismissal allows your spouse to refile in the proper state, but in the interim, you and your spouse can try to reconcile or work on your marriage.

In some unusual circumstances, a spouse files in the wrong type of court. For example, in New York, the lowest court in the state—other than city, village, and justice courts—is the Supreme Court. Matrimonial cases are heard there. If your spouse filed for a divorce in Family Court, which hears only custody, adoption, paternity, neglect, and juvenile delinquency cases, the court will dismiss the case.

Failure to Prosecute

If your spouse fails to prosecute the divorce and the case has been sitting dormant for a while, the court could dismiss it on its own. You can also make a motion to dismiss the case for failure to prosecute.

This doesn't mean your spouse can't refile. In some states, your spouse may then have the right to ask the court to reconsider by filing a motion.

Failure of Proof or Improper Petition

If for some reason your spouse filed for divorce under certain grounds, such as adultery instead of no-fault grounds, they must prove those grounds. If your spouse's evidence is insufficient to prove adultery, the court could dismiss the case if you make a motion to dismiss.

Likewise, if the divorce petition isn't filled out properly or if it's illegible, a court might dismiss it.

Both Spouses Filed or Marriage Is Invalid

If both you and your spouse filed for divorce, the court will likely dismiss one of the petitions or merge them together. The one who filed first is usually able to proceed with their petition.

If for some reason your marriage is invalid, such as when a spouse is already married to someone else or the officiant didn't have authority to perform the ceremony, then a court will dismiss the case.

Voluntary Dismissal or Withdrawal

If you convince your spouse to stop the case, they can do so in most instances by filing the appropriate papers with the clerk's office. The name of the form varies in each state, such as voluntary dismissal, voluntary withdrawal, motion to dismiss, or something similar. You both may have to fill out a stipulation of dismissal, depending on the state and whether the court is close to signing a judgment of divorce, or divorce decree. The judge usually must agree to dismissal if the case has gone on a long time.

Your spouse also could decide to withdraw the case without your input. In such a situation, they would fill out the form and then serve you with it in person or by mail, depending on your state's laws. If the case is relatively new, your spouse can usually withdraw it without getting court approval.

Many of these tactics could delay an inevitable divorce, but sometimes couples reconcile when the court dismisses or withdraws the divorce. It may feel like you have nowhere to turn when you're served with divorce papers, so check with a family attorney to see if there are issues with service, residency requirements, jurisdictional issues, or failure to prosecute. If any of these issues exist, it's entirely possible to get the court to stop the divorce.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.