Making the decision to pursue a divorce is never easy. Often, couples find themselves facing divorce after significant emotional difficulty and turmoil in their marriage, and when they make the decision to begin the process, they truly believe it is the best path forward. Sometimes, however, we can make what we feel is the best decision for our circumstances at the time, and later have a change of heart. It’s no different when it comes to the divorce process. Perhaps you have made significant progress toward addressing problem areas in your relationship. Perhaps, a little bit of time apart has made you realize how much you value your marriage and truly do want to save it. Whatever the reason, couples sometimes change their minds about wanting to end their marriage.
Often, people have the misconception that divorce is some sort of irreversible decision – that once you begin the process, you can’t turn back. The good news is, that this is simply not true. In fact, in North Carolina, the divorce process is actually designed in such a way as to allow couples to cancel their divorce petition when they have a change of heart. The question is, how do you go about doing this? How do you stop the divorce process from moving forward?
The answer? Seek a voluntary dismissal of your case. North Carolina is actually one of the most generous states when it comes to the leeway it provides to a plaintiff to voluntarily dismiss their cases, and when it comes to divorce, couples have ample time to think through whether or not they wish to do so. In North Carolina, unlike some other states, a one-year separation period is required prior to being able to file a divorce petition.This allows plenty of time for couples to experience separation, and to think through whether divorce is really the best option for them.
For those couples who do reconsider, during the one-year period of legal separation, no action is needed, as a petition for divorce would not yet have been filed. If, however, the one year separation period has passed, and a petition has been filed, it’s still not too late to stop the wheels of the process from turning. The spouse filing the initial petition for divorce can seek to have the case dismissed by filing a notice of dismissal at any time before the “plaintiff rests his (or her) case. This essentially means that at any time prior to the time that the person who petitions for the divorce finishes presenting all of their evidence and witnesses, they can choose to withdraw their petition.
Those who live in North Carolina are fortunate in this respect, as this is far more time than many other states allow for withdrawing a petition. From a procedural perspective, you will want to file a Notice of Dismissal form document, also known as an AOC-CV-405 document, which can be found here. After obtaining the appropriate document, the three basic steps for seeking the dismissal are:
- Draft the motion for voluntary dismissal.
- File the motion for voluntary dismissal with the North Carolina county court where the action was filed. If both parties are in agreement regarding the withdrawal, the court will dismiss the entire divorce action.
- Pay any court costs and fees that have already accrued as a part of the divorce action. If it is a joint motion, both parties will share these expenses, although each spouse will still remain responsible for his or her own attorney’s fees.
While seeking a voluntary dismissal is a fairly simple process, there are a few things that are worth keeping in mind. First, the parties should remember that if one person has filed a petition for divorce and the other spouse filed a cross-petition for divorce, their must be a motion for voluntary dismissal of both of those actions. If the party who filed a particular action is not specifically requesting the dismissal, the action will remain. It is therefore important that if both spouses want the dismissal, then both spouses should specifically seek it. Secondly, it is important to remember that seeking a voluntary dismissal does not prohibit either spouse from filing for divorce later. If you do later decide to pursue divorce again, the amount of time it will take will depend, in part, on whether the voluntary dismissal was granted with or without prejudice. If it was granted with prejudice, then the parties must start the divorce process from square one. If it was dismissed without prejudice, the parties can re-open the case within a year, provided that they did not begin living together again. If a couple resumes living together, another year of legal separation to occur prior to the time that they can begin pursuing divorce again.
Contact the Law Office of Dustin McCrary Today
Life is unpredictable. Feelings and circumstances often change. When that happens, you may rethink decisions – including the decision to divorce – that once seemed to be the best path forward. That’s okay, and it’s important, especially when it comes to a decision as monumental as divorce, to make sure that you are truly certain. At the Law Office of Dustin S. McCrary, we’re here for you, whether you decide to pursue your divorce through to completion, or whether you reconsider. Though seeking voluntary dismissal may seem simple on its face, any legal matter is always best approached with the assistance of a knowledgeable and experienced attorney. We would be happy to guide you through this process, or any other aspect of divorce with which you need assistance. Call us any time – we look forward to helping you soon.