You can want to pull back on moving forward with a divorce after your case is filed. When that feeling is mutual, and your spouse has not filed a counterpetition for divorce, you can have your divorce case dismissed off the judge’s docket. A docket is a legal term for a schedule or list of the judge’s cases. If your case is dismissed, you nor your spouse will be able to move forward any longer under that specific cause number. Rather, one of you would re-file your divorce, be assigned a unique cause number, and then start over from scratch.
Dismissing a divorce case may occur if you and your spouse reconcile with one another. This isn’t a very likely outcome, especially if you and your spouse had some major disagreements which led to one of you filing for divorce. However, for today’s blog post from the Law Office of Bryan Fagan, we are going to imagine a situation where you and your spouse have worked out the issues in your marriage before finalizing your divorce. As a result, you all no longer wish to get divorced.
Asking the court to dismiss your divorce is essentially asking the court to cancel the case and act like it was never filed at all. You should check with the district or county clerk’s office to determine the last possible moment that you can ask for dismissal before your case is finalized. In most cases, you can dismiss a divorce if your spouse does not file an answer to your original petition for divorce. If you want to dismiss your case after an Answer has been received, then both you and your spouse will have to sign the motion to dismiss your case.
In most cases, you can ask the judge to dismiss your case any time before the final decree of divorce is signed by the judge. To file to dismiss your case you would file a motion to dismiss your case without prejudice. Without prejudice means that you or your spouse can file for divorce from another in the future without suffering any harm or being penalized for having done so.
Texas has a 60-day waiting period to get divorced
There is a minimum length of 60 days from the date on which you file for divorce until the date on which you can have your divorce finalized by the court. The idea behind this waiting period is to ensure that you are making the correct decision for yourself. Having to wait 60 days necessarily involves a lot of consideration if you want to go through with the divorce. The alternative would be a situation where you could file for and obtain a divorce simultaneously. This would have a lot of effects on our world- most of them negative I believe.
If you have ever jumped to conclusions to make a rash decision, as I have, then you probably would benefit from cooling down and being more deliberate about whether you want to move forward with a divorce. For example, if you do end up not wanting to move forward with the divorce then you should easily be able to dismiss the divorce so long as your spouse has not filed a counterpetition during the same time. If he or she has then your petition would be dismissed but his or hers would remain. You would need to sign a joint motion to dismiss the case together and possibly set the case before a judge and/or file a motion to enter an order when the judge signs it.
Steps to dismiss a divorce case
By no means am I saying that this is the exact process that your specific court will follow when you and your spouse would like to have the divorce petition dismissed? Your court and your judge may have a specific rule or procedure that deviates somewhat from what I am about to layout for you. However, you can look to this run-down as a basic process that you can use to learn more about how the mechanics of a divorce dismissal works in Texas.
While we are discussing this subject, I would recommend that you contact one of the experienced family law attorneys with the Law Office of Bryan Fagan. Before filing for divorce. Our lawyers will walk with you, at no charge, through the circumstances of your case and provide you with some food for thought regarding what steps you could choose to take regarding a divorce. From there you will have a much better idea about whether or not a divorce is right for you or your circumstances.
To begin with, if you were the party to have filed the divorce originally then you would be classified as the Petitioner in your divorce. You would be responsible for filing the petition to dismiss the divorce. Like I mentioned earlier in today’s blog post you could draft a document called a joint motion for dismissal and then file that together with your spouse. Both of you could sign the motion and file it together. List the cause number and then file it the same way that you did your original divorce petition.
At the same time, you should prepare a dismissal order and then file that along with the motion to dismiss the case. Your judge may decide to schedule the case for a hearing if there are any issues that he or she wants to discuss on the record before deciding whether to dismiss your case as requested. However, it is possible that since you filed a joint motion to dismiss the case the judge simply grants the motion and signs your order without the need for any further action. You could check your online case filings or contact the clerk for your court to get an update on additional steps after you have filed the motion to dismiss your case.
If your spouse declines to sign the motion to dismiss then your motion will be set for a hearing. At the hearing, you will be able to offer evidence into the record as to why your divorce should be dismissed. Your spouse would be able to offer their evidence as to why your divorce case should not be dismissed. Bear in mind that if your spouse does not want to have the case dismissed and would like a divorce all he or she must do is file their divorce petition.
The actual legal terminology associated with a motion to dismiss a divorce is known as a nonsuit. You may choose to nonsuit your divorce any time before resting your case in chief in a divorce trial. A Notice of Nonsuit would be the traditional way in Texas to ask that a divorce case be dismissed. The major issue that you need to address is whether your spouse agrees to nonsuit your divorce. If he or she does not agree to sign your nonsuit, then you have a situation where there will have to be a hearing held by the judge.
No agreed nonsuit? Then the divorce is still on
If you want to file a joint motion for nonsuit, but your spouse does not agree then you will need to have a hearing held on the matter. If your spouse files an Answer or a counterpetition in which he or she asks for something like attorney’s fees then your spouse is also asking the court to do something for him or her. In that event, you cannot unilaterally dismiss the divorce without their permission or consent.
Another method for getting your case dismissed is to file the divorce and then simply not pursue the case. You and your spouse agree to simply ignore all settings in your case, not file any documents and the court will choose to eventually dismiss your case. This is called a dismissal for want of prosecution. Because you did not pursue a case then the court is choosing to dismiss your case rather than keep it active and taking up space on their docket.
Your case will go on the “DWOP” docket and be set for a hearing eventually. If you and your spouse do not attend the hearing to fight for keeping your case active, then it will be dismissed. What will probably happen if you, your spouse, or both of you show up to the hearing is that the case will be set for mediation or trial. Even if the judge chooses not to dismiss your case, he or she will not allow you to wait along much longer, either. Expect that your case will be set for something to occur to finalize the case very soon in this case.
What if you are having thoughts about proceeding with your divorce?
I would recommend thinking long and hard about the decision to get a divorce before you file the case. I realize that you may now be in a position where you don’t have a choice on this but if you can it would be wise to think hard about whether you even want to file for divorce. Saying that you “need” to file for divorce may not be true. If you or your child is being physically abused or something like that then you probably do need to seriously consider a divorce. Otherwise, you may be able to think about what to do instead of getting a divorce.
For starters, why not try to talk with your spouse about the problems in your marriage? You do not need to be a marriage therapist to know that communication is probably the main, underlying issue that is troubling your marriage. Instead of sweeping those communication problems under the rug any longer why not open the windows and left the light of day sign on those problems. They say that sunlight is the best disinfectant. If you and your spouse have been trying to avoid having difficult discussions about these issues for some time, then this may be the perfect opportunity for you to once again see if you can talk through them.
It may be that you and your spouse do not have the tools in your toolbox, so to speak, to be able to effectively work through these issues with communication. You may find yourself in a position where you all should work with an experienced marriage or family therapist. You may be able to locate one through your employer, community organizations, health insurance, or even your church. Speaking with an experienced marriage or family therapist can go a long way towards helping you and your spouse overcome the issues that have plagued your marriage and be better prepared for future challenges.
This situation begins and ends with both you and your spouse acknowledging any problem areas in your marriage and then attempting to remedy them through open and honest communication. Remember that problems in your marriage are almost always a two-way street. Understanding your role in contributing to the problems may be the first and most necessary step towards remedying those issues. I have talked with many spouses in my time as a family law attorney who has been hesitant to admit that they played any role in the breakup of their marriage. Sometimes putting your pride in the back seat and being as humble as possible regarding acknowledging those shortcomings of yours can be a great advantage to you and your spouse.
Another step that you all may want to take before your marriage is to consider a marital property agreement. These documents are also known as nuptial agreements. These are especially effective when you have disagreements regarding property and how the property would be divided upon your divorce. In a nuptial property agreement, the two of you can determine how issues of Community property will be dealt with in your marriage as well as if spousal maintenance will be a part of your divorce should that occur. It may seem strange to anticipate a divorce when you are trying to avoid one, but I think it is wise to consider one of these agreements if you can negotiate successfully with your spouse.
The reason I think it is such a good idea to consider negotiating over one of these agreements is that it is better to work through these issues with your spouse now rather than to have to do so in a contested divorce scenario. Being able to work with each other on difficult issues like this can be a great leg up for you in your marriage. You may gain a greater level of trust with your spouse than you had before and at the very least you would have hammered out issues central to divorce while you and your spouse are still on speaking terms with one another period this can help you to avoid a great deal of time, stress and money thrown away in a divorce otherwise.
Both you and your spouse should be represented by your attorneys during a negotiation session over a marital property agreement. This way the two of you will both be able to receive independent counsel and advice regarding the issues central to your marriage regarding Community property, money, and debt. This way you can determine whether or not certain provisions in the agreement are fair for you and whether or not you are interested in working through those subjects together. This may not be something that you are interested in but at the very least it makes sense to consider working through these topics now rather than waiting for a divorce. You are not jinxing yourself in terms of working through these topics rather than bypassing them in hopes of avoiding them in the divorce.
Once your divorce gets going it is more difficult to stop the process. It should go without saying that you are in a better position to avoid a divorce before you must file one in the first place. My recommendation is to consider your needs and that of your family before anything else. You may have friends and family members who are counseling you to continue with the divorce at all costs. However, you should take some time to yourself and see if you can take an opportunity to work through those issues. Even during a divorce with all its distractions, it is possible to arrive at a sensible decision to not continue the divorce or at least take a break to see if a reconciliation is possible.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as how your family circumstances may be impacted by the filing of a divorce or child custody case.