At some point during your case, you and your spouse may wish to try to reconcile your marriage. Divorce is a big decision, and many couples question that decision during this difficult and emotional process.
Clients often ask what to do about their pending divorce matter if the parties have second thoughts before the process is complete. Below are a few considerations to make when determining whether to dismiss your divorce case, or place it on hold while you try to reconcile.
Valuation of property date
In many jurisdictions, the courts will use the date of filing of your divorce as the date on which your property should be valued. Dismissing your case can essentially erase that valuation date, & allow any property you earned since the filing date to be included as marital property if you or your wife re-file for divorce. If you are unsure whether the reconciliation efforts will be successful, it might be prudent to leave your divorce case open and “on hold” while you and your spouse attempt marital counseling, etc. to address the issues that led to your divorce filing. You can always dismiss your case once you feel more secure in your reconciliation, but you cannot (in most jurisdictions at least) re-open your same divorce case once it is dismissed.
Child support orders
If your case has a temporary order on child support in place and your divorce case remains pending, you should consult an attorney before ceasing child support payments due to reconciliation. In some states, your child support obligation will continue to accrue, and if reconciliation fails, your spouse could ask for that child support arrearage from you. It would be your burden to show that you provided in-kind child support payments, such as groceries, contributions to household bills, etc., and some state’s laws may not allow those contributions to be counted as child support when a specific monetary order is in place.
Dissolution case may help or harm reconciliation efforts
Many couples trying to make a good faith effort at reconciliation may not want a pending divorce hanging over their heads while they are attempting to work on their marriage. The idea that either spouse can easily ramp up the case again if a fight occurs or if a counseling session is particularly high conflict can stymie some reconciliation efforts for a couple. On the other hand, having the divorce case open can also spur each individual into making a strong effort at reconciliation, knowing that this is the final opportunity to save the marriage.
Possible delay and cost of re-filing
If reconciliation is unsuccessful, you would need to re-file for divorce if you dismissed your previous case. This means paying another filing fee, and re-starting a new case- collecting documents and information for valuation purposes, since the values of assets and liabilities could change during the time you are attempting reconciliation; starting the clock over if your jurisdiction has a mandatory waiting period before a divorce can be finalized (anywhere from two months to two years, depending on your state’s laws); and getting new temporary orders. That being said, if you and your spouse are co-habitating during your reconciliation efforts, you both may want the assets and liabilities accumulated (or paid off) during the period of attempted reconciliation to be included as part of the marital estate.
One option for addressing possible concerns regarding the fluctuation in property values while you attempt to reconcile could be a Post-Nuptial Agreement. A post-nuptial agreement is a contract to determine property rights and distribution upon the dissolution of a marriage that is entered into after the date of marriage (prenuptial agreements are entered into before the date of marriage). States differ in interpreting post-nuptial Agreements, so consult your attorney regarding your specific jurisdiction’s laws on this option. Indiana only permits post-nuptial agreements if it is entered into as part of a dismissal of a pending divorce matter, because new “consideration”, or bargaining incentives, must be offered for signing such a contract. Other states may not allow postnuptial agreements at all, or may be more flexible to the available terms of a postnuptial agreement.
Deciding whether to leave your court case open while trying to reconcile should be determined after thinking over your particular circumstances, and perhaps discussing your options with your spouse. Your attorney can help you analyze the above considerations, as well as other factors that may influence your particular case.