It is possible, under different scenarios, to discontinue a divorce, before it is finalized by the signing of the judgment. But how can it be done? The answer is found in the New York Civil Practice Law and Rules 3217 and corresponding case law that interprets it. What the law says is that for civil actions, in general (including divorces), an order is not required if no responsive pleading is served. But if no responsive pleading is required then it can be discontinued twenty days after the service of the original pleading. Otherwise a stipulation between the parties of discontinuance would need to be made or a court order for the same made.
So, what does this mean and how does this apply to divorces in New York? Divorces can be initiated by the filing of a document called a Summons with Notice (a complaint can be served with it in the beginning but often is not). Eventually a complaint needs to be drafted and served; however, sometimes this does not happen in a divorce for some time or even not until just prior to the submission of the judgment. If a complaint is not yet drafted and served, then the law seems clear that the initiating party can usually withdraw by their own accord. Less frequently, however courts have found, that the person waived the right to withdraw after lengthy proceedings and it would be inequitable, like in the case of Minkow v Metelka, (46 AD3d 864 [2d Dept. 2007]) where there were substantial court proceedings and the parties included a waiver of the right to discontinue at the Preliminary Conference despite not serving a complaint. If a complaint is served, and the defendant serves an answer, then the divorce can be withdrawn only by a stipulation signed by both parties or an order of the court.
If a couple prepares and executes an uncontested divorce package with their divorce mediator or lawyer (and before it is approved by the court) in which a Summons and the Complaint is served, and the Defendant waives the right to answer the complaint but consents to the divorce, can the Plaintiff withdraw and discontinue the action without an agreement by the plaintiff or a court order? This is a situation that can happen in whatever process an uncontested divorce package is arrived at be it through mediation, litigation, collaborative law, or settlement negotiations. So, if a complaint is served, but no “answer” specifically was served, can the divorce be withdrawn without a stipulation or court order? Well, it depends.
Some cases question whether a responsive pleading (an “answer”) is required in a divorce (see S.H.M. v S.M., 40 Misc. 3d 1220[A] [Sup Ct, Westchester County 2013]. There are arguments for and against this proposition, but most cases seem to rest their decision on whether or not it would be fair to allow the withdrawal under the circumstances of the case, when an answer had not been served.
For example, in Greisman v. Greisman, 14 Misc. 3d 409, (N.Y. Sup. Ct. 2006) after the parties executed an ucontested divorce package in which the defendant waived the right to answer the Plaintiff’s voluntary discontinuance was not allowed when the separation agreement was unfair, there was unconscionableness in the agreement and the Plaintiff overreached against the defendant within. There are a number of decisions in which the withdrawal was not allowed when there were lengthy litigation and court proceedings. Based on these decisions, I believe a strong argument can be made to allow the withdrawal if there has not been substantial litigation in the case and the circumstances would not create unfairness to the other party. Of course, ultimately these facts would be for a court to decide if disputed.
As in most instances the issues can be argued and are open to interpretation. Please see our other blog entries, and website for more information about other areas of law. As always, feel free to contact us for your free initial consultation. It would be our pleasure to speak with you about it.