How Do I Vacate a Divorce Pleading?

By Jennifer Williams

A spouse vacates a divorce pleading by filing a Motion to Dismiss Without Prejudice any time before the court issues the final divorce decree. A Petition for Dissolution filed in the family circuit court where the spouses live starts the divorce process. The petition is delivered -- that is, it is served, to the other spouse, who then has a certain number of days (how many days, depends on the state) to respond by filing an Answer or Counter petition. These documents are called pleadings. Vacating, or dismissing, the pleadings in a case without prejudice stops the case from going forward without forfeiting the right to refile the case at a later date.

Step 1

Fill out a form Motion to Dismiss Without Prejudice for the pleading you filed -- that is, a petition, answer or counter petition, as you can only vacate a pleading you filed. Divorce is governed by state law, and divorce related forms and their required contents vary from state to state. Download a form for your state from a state court database, if available, or from an online legal document provider. Each jurisdiction has its own form or process for filing such a motion. Ask the clerk with whom you filed your petition which form you need to fill out to vacate, or withdraw, your divorce pleading.

Step 2

Draft the Motion to Dismiss Without Prejudice from scratch, if no form is available. At the top state the name of the state, circuit, county and court. Type the case and division number and the case name. Copy the format from the pleading to be vacated. Page down a few lines and center the title of the Motion, that is, a Motion to Dismiss Petition Without Prejudice, or Motion to Dismiss Answer/Counter Petition Without Prejudice. Beneath the title state that you are dismissing the pleading you previously filed in the case, without prejudice. No reason is necessary. Sign the Motion.

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Step 3

Include a certificate of service beneath your signature. The certificate of service must state that a copy of the motion was mailed, faxed or hand-delivered to your spouse. Sign the certificate of service. File the motion in the case and deliver a file-stamped copy to your spouse in the manner provided in the certificate of service -- that is, by mail, fax or hand delivery.

Step 4

Vacate a Petition for Simplified Dissolution with a Motion to Dismiss Petition for Simplified Dissolution Without Prejudice. A simplified petition for dissolution is a joint petition for divorce, which is allowed in some states to expedite the divorce process. The motion to dismiss must state that the spouses jointly dismiss the petition. Both spouses must appear at the clerk's office together and sign the motion before a deputy clerk. No certificate of service, or service on the spouses, is necessary because they jointly sign and file the motion.

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How to Stop Divorce Proceedings in California in the First 30 Days
 

References

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