Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

If My Spouse And I Reconcile And Dismiss Our Divorce, May I Have It Reinstated?

            Yes.  In New Jersey a spouse who seeks to have their lawyer move forward with a divorce that had been previously dismissed by the Family Part, Superior Court of New Jersey, must meet certain requirements (i.e., exceptional circumstances) in order to have the Complaint for Divorce reinstated.  Below is a case in which the attorney was successful in reinstating the divorce because, along with others reasons, the judge determined that the parties’ were sincere in their mutual attempt to recently reconcile.

            In Schmidt v. Schmidt, the Honorable Judge Jones of the Superior Court of New Jersey, Family Part of Ocean County, reviewed whether to allow Stephen Schmidt to restart a divorce complaint that was previously dismissed after a mutual but unsuccessful reconciliation, or deny the motion and require him to file a new divorce complaint instead. Under the specific facts of the case, Judge Jones decided to grant Stephen’s motion to reinstate the previously dismissed divorce complaint. Under Rule 1:13-7 there are general time provisions under which one may reinstate a case after it has been dismissed without prejudice “for lack of prosecution.” According to Rule 1:13-7(a), a motion to reinstate a complaint for divorce will be granted if the moving party can show good cause, and is filed within ninety days of the order for dismissal. If the motion is filed after ninety days of the order for dismissal, the motion will be only be granted upon a showing of exceptional circumstances. The court found in this case that one such exceptional circumstance existed here in that the prior case was dismissed relatively recently and for the express reason that the parties’ voluntarily attempted to save the marriage. The court held in this instance that the policy of encouraging mutual efforts at attempted reconciliation was important enough to reinstate the matter. Accordingly, the matter was reinstated with defendant being provided additional time to answer the complaint.

            Stephen and Ruth Schmidt got married on October 28, 2011. Stephen filed for divorce four years laters on November 16, 2015, on the grounds of irreconcilable differences. He paid a $ 300 filing fee and an additional fee for service of process of the complaint. However, on February 4, 2016, both Stephen and Ruth filed notarized requests for the Family Part to dismiss the complaint, and stated they they had jointly decided to try and reconcile. As such, the Family Part granted the couple’s request and the divorce complaint was dismissed.

            However, on October 21, 2016, Stephen filed a motion in which he advised the court that the efforts to reconcile were not successful, and requested the court to reinstate the divorce complaint that was previously dismissed. Stephen most likely wished to avoid paying another $ 300 filing fee less than a year after paying the first fee.

            Judge Jones explained that under Rule 5:1-1, family law actions are governed by Part V of the Court Rules. The civil rules in Part IV may also be of guidance depending on the situation.  According to Rule 4:37-1, when both parties jointly file a for the dismissal of a divorce complaint, generally, the dismissal is without prejudice. Furthermore, under Rule 5:5-7, anyone who changes their mind and actually wants to proceed with the divorce after the complaint has been dismissed, has to file an affidavit that states the reasons for the delay, the state of the relationship of the parties with each other, and any understandings or agreements that might have been made between the parties.

            Under Rule 1:13-7 there are general time provisions under which one may reinstate a case after it has been dismissed without prejudice “for lack of prosecution.” According to Rule 1:13-7(a), a motion to reinstate a complaint for divorce will be granted if the moving party can show good cause, and is filed within ninety days of the order for dismissal. If the motion is filed after ninety days of the order for dismissal, the motion will be only be granted upon a showing of exceptional circumstances.

            Generally, a court has the authority to to enter an order of dismissal, under Rule 1:13-7 for a lack of prosecution, when the party that filed the complaint chooses not to proceed with his or her case. This may include actions like failing to serve the other party with the complaint, or failing to enter default in the applicable time period after the service of process. In Schmidt, Stephen technically did not continue “prosecuting” the the divorce litigation because both he and Ruth made the mutual decision to try and reconcile their differences. The couple was basically telling the court that they no longer wished to go forward with the divorce litigation, and the Family Part dismissed the divorce complaint for lack of prosecution, without prejudice, just like what would have happened under Rule 1:13-7 if Stephen had decided not to go forward with scheduling an uncontested hearing after default was entered against Ruth. As such the spirit of Rule 1:13-7 was relevant in this case as well.

            In Schmidt, more than ninety days had passed since the divorce complaint was dismissed. Judge Jones applied the logic of Rule 1:13-7, and determined that the relevant question was if “exceptional circumstances” existed that allowed Stephen to just reinstate his previously dismissed divorce complaint, instead of requiring him to file a brand new divorce action. This posed the question, as to what exactly “exceptional circumstances” are, that would warrant the Court to reinstate Stephen’s divorce complaint more than ninety days after it was voluntarily dismissed. There was no explicit answers in the Rules, which left the matter to Judge Jones’ equitable discretion.

            Judge Jones found that in this specific case, there was one such exceptional circumstance. Even though the the divorce complaint was dismissed over ninety days ago, it was still relatively recent, and the reason for the dismissal was that both Stephen and Ruth were voluntarily making an effort to save their marriage. Past courts have acknowledged the public policy of preserving marriages, and for society to encourage efforts of reconciliation between spouses, when appropriate. For this exact reason, New Jersey Statute 2A:34-2, the divorce statute, gives Family Part courts the power to grant no-fault divorces when the parties have irreconcilable differences, only if there is no reasonable prospect of reconciliation. Sometimes couples need a “trial reconciliation” before they agree to resume the marriage permanently in all respects. With that said, there is also a public policy in this state that favors the termination of dead marriage. However, in this case, the parties themselves stipulated that they still had a chance to revive their marriage at the time of the dismissal. In congruence with this state’s public policy, they both deserved the chance to try and make their marriage work.

            Even though Stephen and Ruth’s efforts to reconcile might have been unsuccessful, they did try. Moreover, even though they technically went past the ninety day period to reinstate a complaint, it was not as if an enormous amount of time had past. Only a mere eight months had elapsed between the time of the dismissal and the filing of the motion to reinstate. Judge Jones found that the passage of eight months was reasonably recent enough to allow the reinstatement of the divorce complaint. The other option would be to require him to pay two financially substantial divorce filing fees within one year, only because he and his wife tried to save their marriage.

            For all of the foregoing reasons, the Family Part of Ocean County granted Stephen’s motion to reinstate his previously dismissed divorce complaint. Judge Jones ordered that Stephen would have thirty-five days from the date of this order to file a responsive pleading. Moreover, the previously entered default against Ruth, that was dismissed along with the litigation, would not be automatically reinstated. Judge Jones held that it would not be equitable to reinstate a previously dismissed default, after eight months of reconciliation efforts, without first giving Ruth thirty-five days to respond to the reinstated complaint, and take part in the case.

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