Stopping a Divorce After Petition Filed

Stopping a Divorce After Petition Filed

By Christine Lagle

Irretrievable Breakdown - Only Grounds for Divorce in Colorado

All 50 states plus the District of Columbia are no-fault states but the requirements for a no-fault divorce can vary from state to state. In Colorado, the grounds for no-fault divorce is that the marriage is irretrievably broken. As long as both spouses agree that the marriage is irretrievably broken, the Court shall enter a decree of dissolution under C.R.S. 14-10-110(1). Even if the parties do not agree about the breakdown of the marriage, the Court can, and invariably will, still issue a divorce decree.

The responding spouse may object to the divorce in response to the petition or even testify at the dissolution hearing that the marriage is not irretrievably broken so the Court should not enter a divorce decree. The Courts have long held that a trial court can and will grant a divorce over that objection so long as one spouse believes the marriage is broken and wants the divorce. In a 1975 case, just four years after Colorado adopted no-fault divorces, the Colorado Supreme Court noted:

“Where the parties do not agree as to the breakdown of the marriage, it is imperative for the court to weigh all of the evidence and make its own independent determination of that fact.”

In re: Marriage of Franks, 542 P.2d 845, 852 (Colo. 1975).

Even if the responding spouse chooses to not participate in the case because they do not want to get divorced, that will not stop a divorce from happening. Not participating in a divorce only hurts the one not responding because the Court will divide assets and make child custody decisions without their input and information.

Strictly speaking, the Court is required to make specific findings as to the marriage being broken. Per C.RS. 14-10-110(2):

“If one of the parties has denied under oath or affirmation that the marriage is irretrievably broken, the Court shall consider all relevant factors, including the circumstances that gave rise to the filing of the petition and the prospect of reconciliation, and shall:

(a) Make a finding whether the marriage is irretrievably broken;

(b) Continue the matter for further hearing not less than thirty-five days nor more than sixty-three days later, or as soon thereafter as the matter may be reached on the Court's calendar, and may suggest to the parties that they seek counseling.  At the adjourned hearing, the Court shall make a finding whether the marriage is irretrievably broken.”

It is highly unlikely that a judge would delay a case in order to facilitate counseling unless both parties requested the delay despite the statutory language (we’ve never seen it happen). In reality, all it takes to obtain a dissolution of marriage in Colorado is that one spouse testifies the marriage is broken regardless of any objection from the other side.

What Happens If You Change Your Mind About Divorce?

Even though Colorado is a no-fault state, there is still a 91 day “cooling off” period built into the domestic code before the Court can enter a decree dissolving the marriage. C.R.S. 14-10-106(1)(a)(III). That decree will be entered with or without the responding spouse’s input.

If one party changes his or her mind during the divorce case (during or after this “cooling off” period), it may still be possible to stop the case before a divorce is finalized. Whether or not it is possible to stop a divorce case depends on who is changing his or her mind, and when that change happened.

It is easiest for the filing spouse to change his or her mind and stop the divorce case before the responding spouse is ever served. That does not mean it is not possible for the parties to stop the case after service. If the either spouse wants to stop the case, the spouse requesting a dismissal is limited by the agreement of the other party – without an agreement, it’s just not likely that the Court will dismiss the case.

Dismissing Your Divorce Case

How a case gets dismissed depends on whether or not the responding spouse is an active participant in the case.

Petitioner Dismisses Before Respondent Enters Case

If the case has been filed but your spouse has not yet filed a response, or otherwise entered the case, you can file a notice of dismissal with the Court and the case will be closed without any further action. C.R.C.P. 41(a)(1)(A). This is the only time the case can be dismissed unilaterally by one party, without the other’s consent. However, after the respondent spouse has entered the case, dismissal requires both spouses’ agreement.

Dismissal by Agreement

If both parties agree to dismiss the case, they can file a joint motion or stipulation asking the Court to do just that. The dismissal would be “without prejudice”, which means either spouse is free to bring a new dissolution of marriage action at any time because the issues underlying the divorce have not been resolved. C.R.C.P. 41(a)(1)(B). Brody v. Bock, 897 P.2d 769 (Colo. 1995).

If there is no agreement on dismissal, either party can file a motion asking the Court to dismiss the matter but it is unlikely to succeed if the other spouse objects to the dismissal. Regardless of how or why a case gets dismissed, either party can still refile the case at any point. There is no legal mechanism to prevent someone from filing a divorce case, so if one spouse truly wants a divorce, that spouse will get that divorce in the end.

The responding spouse can also file a motion to dismiss on a few specific grounds such as a lack of jurisdiction or issues with service. There are two types of jurisdiction in divorce cases: personal and subject matter. Subject matter jurisdiction is the authority of the court to hear a case based on the law and facts involved. Personal jurisdiction is the court’s authority over the parties in a lawsuit.

Dismissal Due to Lack of Subject-Matter Jurisdiction

Subject matter jurisdiction may present an issue in Colorado divorces. Under C.R.S. 14-10-106, in order to have jurisdiction, one spouse must be a legal resident of Colorado for at least 91 days before the divorce case was filed. One spouse living in Colorado is normally enough for the Court to exercise jurisdiction. Often, subject matter jurisdiction comes down to due process concerns and where the facts giving rise to the lawsuit took place. If both spouses are residents of Kansas, and only come to Colorado for vacation, Colorado courts would not have jurisdiction to hear the case even if filed in Colorado.

Lack of Personal Jurisdiction

Personal jurisdiction requires that that one of the four criteria is met:

  1. The responding spouse is a Colorado resident,
  2. The responding spouse was served pursuant to Colo.R.Civ.P. 4 in Colorado,
  3. The responding spouse consents to Colorado jurisdiction, or
  4. For maintenance and child support, personal service outside Colorado so long as the marital domicile is in Colorado and the petitioner stayed in Colorado after the responding spouse left the state. Personal jurisdiction can be an issue for military divorces as service members can be stationed in Colorado without becoming residents of the state. 

Defective Service of Process

Process of Service is a necessary part of the Colorado divorce process as it gives appropriate notice of legal action by the filing party. Colo.R.Civ.P. 4 lays out that for personal service on an individual over the age of 18, a copy of the summons must be delivered to the the responding party or left at their home with an adult family member or workplace with a supervisor/manager, bookkeeper, secretary/assistant or HR representative or it can be given to someone authorized to accept service (like an attorney). If service does not comport with the requirements of Colo.R.Civ.P 4, ineffective service may be a bar to jurisdiction. 

Even if the judge does dismiss the case based on a motion from the responding spouse, either party can potentially cure the issue and refile at any point.

If the case is dismissed, that means any temporary orders issued would be vacated (canceled or stopped) entirely under C.R.S. 14-10-108(5)(c), and if the parties decide down the road that reconciliation did not work, a whole new case would need to be filed.

Stay of Proceedings

If a couple reconciles during the pendency of the case, rather than dismiss the case outright, couples can ask the Court for a stay of proceedings. A stay of proceedings is a Court order that freezes the case so that all orders remaining in effect and deadlines are tolled for a set period of time. A stay is essentially like pressing the pause button on a case without losing any of the work already done. The parties can request a stay for a variety of reasons, not just attempts at reconciliation.

The decision to stay a case resides solely with the trial Court judge, and the Court of Appeals has granted judges wide discretion as to how Courts will control the disposition of the cases on a docket. In re: Marriage of Fleet, 701 P.2d 1245 (Colo.App. 1985).

If a judge issues a stay, it will not be an indefinite stay, but will have a set timeline for the reopening of the case in the future. A stay can be issued for a few weeks or a few months depending on the judge and the circumstances. The Court has wide latitude as to the factors and circumstances it looks at when determining if a stay is reasonable, and if so, how long the stay will be. A stay can be issued over the objection of the other party if the Court deems it warranted.

When the stay has expired, the case would typically be automatically dismissed unless one or both of the spouses has filed a pleading advising the Court that the case is back on. If the case does resume, it picks up just where it left off, with new deadlines in place as needed. Parties can request an extension to a stay, but like the initial stay itself, the decision to stay proceedings is up to the judge’s discretion.

Stays can be particularly useful in cases where spouses are on the fence about divorce because the case stays open while allowing time for potential reconciliation. This means that if one or both of the spouses decide to move forward with a divorce, the case picks up from where it left off without wasting any of the time and money already spent on the divorce process. A stay provides very little strategic advantage in litigation since the case (and all of the orders) are frozen in place but it can give parties some additional breathing room in preparing for a contested hearing or gathering information.

A stay issued at the request of the parties for reconciliation should not be confused with a stay issued pursuant to the Servicemembers Civil Relief Act (SCRA). Under 50 U.S. Code § 3932, a Court can issue a stay sua sponte (on its accord) or upon motion when a service member’s military duty prevents or affects the ability to appear in a case. The first initial 90 day stay is mandatory if the statutory criteria is met, but additional stay requests are up to the discretion of the Court.

For more information on the SCRA, see our Servicemembers Civil Relief Act article in the Military Divorce Guide.

Convert to a Legal Separation

If the parties want to stop the divorce, but still resolve all of the legal issues arising from the marriage (property, debt, support, custody, etc), it is possible to convert a divorce case to a legal separation. Overall, the process is the same for a legal separation and a divorce, including the process to dismiss or end the case early. Both will divvy up assets, make decisions about the kids, and even order family support but with a legal separation, the parties are still technically married for many purposes, and treated as divorced for others.

As with a dismissal of the divorce, converting to a legal separation requires the consent of both spouses. If one insists on a divorce, per C.R.S. 14-10-102(2) the Court must grant one:

“If a party requests a decree of legal separation rather than a decree of dissolution of marriage, the Court shall grant the decree in that form unless the other party objects.”

It’s worth noting that converting a divorce case to a legal separation can only happen while the case is pending. While a legal separation can be converted to a divorce once the decree has entered (after at least six months has passed, pursuant to C.R.S. 14-10-120)), the same is not true in reverse. Once a decree of dissolution is entered, there is no provision to convert the decree to a legal separation instead.

For a more thorough discussion of legal separation vs divorce, see our Legal Separation article in the Colorado Family Law Guide.

Failure to Prosecute 

The easiest (but not quickest) way to end a divorce case is for the parties to just stop doing anything. If neither party actively participates in the case and lets the matter languish, ultimately the Court will dismiss the case pursuant to C.R.C.P. 41(b)(2) for “failure to prosecute.” 

The full process for a dismissal for failure to prosecute is set forth in C.R.C.P. 121, § 1-10. Before the Court will actually dismiss a case, the Court will issue a “delay prevention order” threatening dismissal unless one of the parties does something within 35 days. Generally, the delay prevention order will list specific guidance from the Court on the steps necessary to keep a case moving forward. If the parties do nothing, the Court will dismiss after that 35 day period runs. Note that this is typically not going to happen if counsel is involved - most attorneys are diligent enough that they would advise the court one way or the other, and not keep the judge guessing as to the status of the case.

That's not to say that a divorce requires both parties’ participation. If one party does not respond after proper service, or chooses to stop responding during the case, the Court will still move forward with the case so long as one party is actively participating. The Courts in Colorado can issue a default judgement in those circumstances. If the unresponsive spouse is active duty military, the SCRA does include provisions that exempt military personnel in some circumstances, i.e. serving overseas.     

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Tag: 
Divorce
Secondary Tag: 
Jurisdiction
Team Member: 
Christine Lagle