What If We Filed For Divorce But Now Want to Try and Reconcile?

Posted on in Divorce

Divorce ReconciliationIn some instances, a party files for divorce and then decides that reconciliation may be possible and wishes to stop the divorce proceedings.  It is important to know that just because you have filed a case, does not mean that you are required to get divorced and if you and your spouse decide you wish to attempt reconciliation, you do have options.  At McSwain Nagle & Giese, P.C. we believe in making all efforts to preserve the family unit and we always encourage parties to pursue their options for reconciliation in safe and healthy marriages.

If the case is being dismissed entirely, there are procedural requirements that must be followed.  The party who files the initial Petition for Dissolution of Marriage is known as the Petitioner in the divorce case. The other party is known as the Respondent. The Respondent can file a counter-Petition in which case they are also known as the Counter-Petitioner.  This is relevant because if you are the Respondent in the case, the Petitioner must agree to the case being dismissed.  If you are the Petitioner, and the Respondent does not agree, you may still be able to withdraw your Petition and close the case, as long as no Counter-Petition or custody proceeding has been filed and you pay the filing fees of the other party. 

Oftentimes parties who are attempting reconciliation are not certain that their attempts at saving their marriage will be successful but do wish to try.  In those instances, the parties may not want to dismiss their case entirely, but rather wish to put it on hold.  Frequently, marriage counseling is being attempted during this hold period and the parties do not wish to continue the litigation process while actively trying to salvage their marriage.  Litigation is by definition adversarial and typically not conducive to reconciliation.    

In some counties, the Courts have what is known as a formal “reconciliation calendar.” This is basically a suspension of the case for six months and not a dismissal of the divorce case entirely. Some Courts do not have actual “reconciliation calendars,” however, they will allow the parties to set the case out for a set period of time (often between 60 and 180 days) to see if reconciliation is possible.  During this time, the parties are not actively participating in the case, there are no court dates, and the attorneys are typically not incurring much in fees because their work is on hold.  The Court will usually set a date far enough out to give the parties time to attempt reconciliation and if the parties are reconciled by that date, the Petitioner in the divorce case can voluntarily dismiss his or her Petition for Dissolution of Marriage. If the parties decide that they still want to proceed with the divorce, they will continue where they left off.   

The formal process for dismissing your case without an agreement between the parties is by filing what is called a Petition for Voluntary Dismissal. If the case is dismissed, then the case goes away entirely. If the parties want to divorce in the future, they must start from the beginning. This typically requires they re-retain their attorney (new retainer fees) and re-file their case, incurring the filing fees again.  It also requires that service of process be made again, and the fees and delays associated therewith will result.  The time spent on the original case (responding to the petitions, discovery, etc.) will all need to be completed again. 

However, if the Respondent has a counter-petition on file, this means that both parties have divorce petitions on file. If that is the case, and the Petitioner decides to dismiss his or her case, the Respondent/Counter-Petitioner can still proceed with the divorce since he or she has a counter-petition on file. Even if the Petitioner decides that he or she does not want to be divorced, the Court must still go forward on the Respondent’s Counter-Petition. This is why it is important to tell your attorney from the beginning if you think that reconciliation is an option or if you think that your spouse is going to dismiss his or her pleading. Frequently, attorneys recommend always filing a Counter-Petition if you did not file the initial case but also want the divorce to proceed to avoid a dismissal of the case. 

The process of dismissing a case without an agreement is further complicated if there are minor children involved.  In some instances, even if no Counter-Petition has been filed, the court can refuse to dismiss the case because a custody related petition has been filed.  In these instances, the court is required to resolve the child-related disputes even if the actual divorce is no longer sought and therefore the entire case cannot be dismissed.

It is important to remember that even if one party may not want to reconcile and the other party does, the Court may still grant the divorce. In Illinois, to obtain a divorce, the Petitioner must prove that the marriage is irretrievably broken down, but this is a relatively low burden and generally speaking if one spouse wants a divorce the court will grant it. There is an irrebuttable presumption that the marriage is broken down if the parties have been living separate and apart for a period of six months and that does not require the parties live in separate households. If you believe that your spouse may want to reconcile and you do not, make sure you let your attorney know so that he or she can be prepared.

If you have any questions regarding reconciliation or wish to discuss the process of divorce further, please contact our firm to schedule a free consultation with one of our experienced attorneys. 

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