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 If a complaint is served, and the defendant serves an answer, then the divorce can be withdrawn only by a stipulation signed by both parties or an order of the court. Continue reading ›