Family & Safety

After a divorce is filed with the clerk’s office by the filing spouse (petitioner), they may change their mind about divorcing the responding spouse (respondent). There may have been a reconciliation between the spouses, so they want to stay married.

If the filing spouse wants to stop the divorce, they can file documents to withdraw the divorce case. This is also called a “voluntary dismissal,” as well as ”dismissing” or “nonsuiting” a case.

If the final trial or hearing in the divorce case has not yet started, the filing spouse can withdraw the divorce petition by completing and filing a Motion to Dismiss and a Notice of Court Date for Motion.

After the forms are filed with the court clerk, the filing spouse will receive a court date. The responding spouse and their lawyer (if they have one) must then be notified that the filing spouse is withdrawing their petition and provided with both the Notice of Court Date for Motion and Motion to Dismiss. The filing spouse must then attend their court date.

The process for a filing spouse to dismiss a divorce case after the final trial or hearing has begun is similar to dismissing the case before the trial or hearing, except for an additional step.

A Motion to Dismiss and a Notice of Court Date for Motion must be completed and filed by the filing spouse, as well as provided to the responding spouse and their lawyer. In addition, one of the two must be included:

• If the responding spouse agrees to dismiss: the filing spouse can get the responding spouse’s permission for the motion by having them sign the petition as well.
• If the responding spouse does not agree to dismiss: the filing spouse must provide a “compelling” reason for dismissing the divorce without the responding spouse’s permission. An affidavit must be signed and included.

If the responding spouse has filed a counterpetition, this means that both the filing spouse and the responding spouse have divorce petitions in the court’s records. Once the responding spouse files a counterpetition, they can be referred to as a “respondent” and as a “counterpetitioner.” The filing spouse can be referred to as a “petitioner” or a “counterrespondent.”

In this situation, if the filing spouse decides to withdraw their divorce petition, the responding spouse can still go forward with the divorce because they have a counterpetition on file. The judge must continue with the divorce if the responding spouse has a counterpetition on file, even if the filing spouse decided to withdraw their petition.

If the responding spouse attends the final trial or hearing date and the filing spouse does not attend, the responding spouse can ask the judge to dismiss the divorce case.

If a case is dismissed, the filing spouse can later file a new case for divorce again if the previous divorce was “dismissed without prejudice.” Typically, divorce cases are dismissed without prejudice. 

However, if a case was “dismissed with prejudice,” that means the filing party cannot later file a new case regarding the same facts and legal arguments.  Learn more about dismissing without prejudice.

No. If the case is dismissed, the filing spouse cannot get back the fees they paid to file the divorce case. If they later decide to file for divorce again, they will have to pay the filing fees again.

Some counties, such as Cook County, have a “Reconciliation Calendar.” The spouses can file a motion asking the judge to be placed on this calendar, which will suspend the divorce for a period of time. Learn more about this process in Cook County at Circuit Court of Cook County Rule 13.2(g).

Learn more about dismissing a divorce case at Illinois Code of Civil Procedure, Section 2-1009, 735 ILCS 5/2-1009).

Typically, a lawyer is not needed for a filing spouse to dismiss a divorce case they have filed. However, the filing spouse may want to talk to a lawyer for help if they are trying to dismiss a case without the responding spouse’s cooperation after the final trial or hearing has started.

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