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Can I withdraw my Divorce?
December 8, 2021
Can I withdraw a divorce case?
This article is about parties who have filed for divorce but have changed their mind and now want to know whether they can withdraw their case in Supreme Court. The answer is it depends. Whenever you make an application to court it is considered a very formal application. You cannot just ignore the fact that you filed something in New York Supreme Court. So, if you wish to discontinue who are action for divorce it depends on what stage of the proceedings you are in. Obviously, it is easier to stop a divorced before it has been litigated. If a Judge has been assigned it can become more complicated. For instance, if one of the parties has filed a divorce case by way of Summons with Notice, and have not served it, app they do not require the permission of the other party to withdraw the case so long as they did not file a Verified Complaint, and so long as 20 days have not elapsed. In that regard, act of your lawyer in that circumstance would simply file a Notice of discontinuance. The law in support of this this can be found in the NY CPLR at section 3217. And
However, if you have filed a Summons with Notice for action for divorce in New York Supreme Court and you have served the other party, and more than 20 days has passed then it will require the signature of both parties to discontinue the action. A Stipulation is also required if you filed a Verified Complaint and y would our spouse responds with a verified Answer or Motion. If that occurs the case will move forward. The
So, you might ask, what if your spouse will not sign the stipulation for discontinuance of the divorce action. When this occurs, it will require your Attorney to file a motion in the Court for permission to withdraw the divorce. When this occurs, your lawyer must give reasons and a basis for your request for withdrawal of your case. Then, it is entirely up to the court to decide whether the case will be withdrawn.
You might also ask what will happen in circumstances where both parties want a divorce but have settled their issues and do not want to litigate the divorce. In other words, you filed a verified complaint, your spouse answered the verified complaint, but now you have reached a settlement and you wish to close the case. Be advised that you cannot just close the case. In this situation the best course of action is to draft a stipulation of settlement and file an uncontested divorce. In the uncontested divorce paperwork, you will have the opportunity to withdraw your verified answer and proceed on the verified complaint for to a judgment of divorce. In this regard, your divorce ends with a formal divorce judgment. But the clerk of the Court will not allow you to get a judgment of divorce if the spouse who was served does not execute a formal notarized defendant’s affidavit stating that they have either decided not to answer the complaint or have elected to withdraw. At their verified answer.
If you have filed a verified complaint that needs to be amended because you made an error, you also need to file a motion to amend your verified complaint.
The court will be more likely to grant you a withdrawal of your divorce action if the case has not been fully litigated if you provide good basis for your position.
Hope this has been helpful to you.
By: Your Manhattan Divorce Lawyer
Lisa Beth Older apt