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LegalGems
LegalGems, Lawyer
Category: Family Law
Satisfied Customers: 8074
Experience:  Experienced Family Law Attorney
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I filed but no longer want the divorce. Can I stop it even

Customer Question

I filed for divorce but no longer want the divorce. Can I stop it even if my husband wants it
Submitted: 9 months ago.
Category: Family Law
Expert:  LegalGems replied 9 months ago.

What state is this in regards ***** *****?

Customer: replied 9 months ago.
Illinois
Customer: replied 9 months ago.
We still share the same bed and have been intimate does that matter
Expert:  LegalGems replied 9 months ago.

Irreconcilable differences means the spouses no longer get along. It is also known as a "no fault" divorce.
If you and your spouse have been separated for at least 6 months, the court assumes that irreconcilable differences exist and you do not have to prove that you can no longer get along.
You can still get divorced if you and your spouse have been separated for less than 6 months, but you may have to show the judge that you can no longer get along.
You do not need to describe any specific behavior your spouse did to prove irreconcilable differences. So if the intimacy is seen as a sign of reconciliation the court would generally require the waiting period to begin anew, unless for example it was an isolated incident.

The Illinois Code of Civil Procedure specifically grants to any plaintiff (the person who starts a lawsuit) the right to ask the court to voluntarily dismiss all or a part of his/her own petition or motion provided that no hearing or trial has begun. In almost all cases, a plaintiff's motion to dismiss his/her own complaint will be granted without further hearing. A plaintiff makes a motion to voluntarily dismiss his/her own petition by filing a motion and affidavit with the court and sending copies to the defendant (the person being sued )or his/her attorney.

If a trial or hearing has begun, the court can still grant the motion, but the law states that the plaintiff must get the defendant's approval or present a compelling reason/argument to the court. The farther a case has proceeded, the more compelling the reason must be.

In either situation, the plaintiff must pay the "costs" of the action. This could include filing costs, court costs, and even attorney's fees. The judge presiding over the case determines what the appropriate costs/fees are for a case, not your husband. Consequently, the judge may grant your motion to withdraw your divorce petition, but you may have to pay your husband's costs/fees.

Most (but not all) of the time, if the plaintiff (or his/her attorney) does not appear at the first scheduled hearing, the plaintiff's petition or motion will be dismissed. If a trial or hearing has already begun, however, the judge may not dismiss the case and may instead make a ruling on the plaintiff's motion. Even worse, if the defendant is present and he/she has filed an answer or raises a petition or motion of his own, the court could hear the defendant's motion or petition and make a ruling.

The problem, therefore, in not showing up is that you don't know what will happen - your case could be dismissed, it could proceed without you, or even worse, the other side could raise their own motion and you would not be present to defend yourself. One can prevent that by checking the court file after the hearing.

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Customer: replied 9 months ago.
I'm still confused, I can stop the divorce since we share the same bed and are intimate?
Customer: replied 9 months ago.
Also I have a copy of a paper he filed with his answer which says he ask the court to deny the relief requested in the petitioners petition for dissolution of marriage....does that mean he doesn't want the divorce
Expert:  LegalGems replied 9 months ago.

It depends on the ground, and the amount of intimacy.

For example, if the ground alleged is wrongdoing by one spouse (versus irreconciable differences) then it is generally irrelevant. If the ground was irreconciable differences, and the intimacy is ongoing, a party can object to that ground which can seriously delay the case - basically it would either restart the waiting period of 6 months, or would nullify the 2 year waiting period.

If the other party denied the entire petition and made a request for dismissal, then the petitioner can proceed with filing a motion to dismiss. 735 ILCS 5/2-610 and 735 ILCS 5/2-1009 allows for such a dismissal.

Customer: replied 9 months ago.
Ok, so I filed the petition to stop the divorce the judge may or may not grant it then. Should I inform the judge of our intamicy
Customer: replied 9 months ago.
I know that my husband filed an answer but I'm not sure he filed a counter claim is there a difference and would I have been notified of a counterclaim?
Expert:  LegalGems replied 9 months ago.

The judge would only be interested in that if the motion was denied; but if the answer also requested a dismissal of the entire action then there would be no opposition and the judge would typically grant it.

Yes, that is correct- a counterclaim prevents an automatic dismissal under 735 ILCS 5/2-1009 and the counterclaim would be served on the petitioner. All legal documents must be served on the other party.

Customer: replied 9 months ago.
If I look at my court case online it says only an answer was filed... would somewhere on there say counterclaim?
Expert:  LegalGems replied 9 months ago.

If it was filed with the court, it would normally be indicated online.

Customer: replied 9 months ago.
with no counterclaim showing online I should have a chance to stop this divorce? Since I petition the court? Does he have the right to fight it with out a counterclaim?
Expert:  LegalGems replied 9 months ago.

Yes, that is correct; the filing party has the statutory right to request the dismissal if no hearing/trial has yet occurred. Typically this request is granted.

Customer: replied 9 months ago.
We have met in front of the judge and did mediation for visiting rights with the kids does that matter?
Customer: replied 9 months ago.
for the kids
Expert:  LegalGems replied 9 months ago.

Yes, that would count as a hearing if the judge was present; in such cases the court requires both parties consent to dismiss; or a compelling reason/argument to the court. So the judge would review the facts of the case and decide accordingly (and the intimacy factor would also be considered).

Customer: replied 9 months ago.
If my husband decide to continue with the divorce the judge would likely deny my request to stop the divorce.
Customer: replied 9 months ago.
Even though there is no counterclaim filed?
Expert:  LegalGems replied 9 months ago.

The judge would look to the particular facts of the case-

the petitioning party has a right to request a dismissal - Until a hearing; then the parties must agree, or the court will look to the facts and decide the proper steps to take.

Expert:  LegalGems replied 9 months ago.

The counterclaim completely prevents a dismissal unless the counterclaim is withdrawn or the parties agree.

Customer: replied 9 months ago.
Ok... So there is hope . I just know that if we continue with the divorce we will both regret it. I feel that we need some time. Is there anything I could say to the judge to stat my thought? Or do I just file and say nothing or do write a letter to the court explaining why I would like to withdraw my divorce
Customer: replied 9 months ago.
Any advice would be helpful
Expert:  LegalGems replied 9 months ago.

It is completely acceptable to attach an affidavit setting forth one's reasoning;

another option is mediation- many times that helps reconcile a couple.

Expert:  LegalGems replied 8 months ago.

Checking in to see how the above worked out;

Thank you for using JA.

Thanks and take care.

Customer: replied 8 months ago.
Your answer was wrong...I was able to petition the court to stop the divorce
Expert:  LegalGems replied 8 months ago.

Yes, that is correct; if the party petitions the court and the judge grants it -

per the above:

The judge would look to the particular facts of the case-

the petitioning party has a right to request a dismissal - Until a hearing; then the parties must agree, or the court will look to the facts and decide the proper steps to take.

29 May 2016, 11:33 AM

Me

The counterclaim completely prevents a dismissal unless the counterclaim is withdrawn or the parties agree.

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