Stop the Divorce – Changing Your Mind After Filing

Young woman holding up her hands in indecision

Divorce can be incredibly stressful on families no matter how cooperative parties are. Despite the stress of a divorce case, some couples may want to stop the divorce so they can try again to reconcile. There are several ways (other than living in a state with a Covid-19 related divorce moratorium!) to stop a divorce which has already been filed, and the attorneys at Graham.law have seen it happen enough that we can discuss which way works best for you.

We saw reconciliation stop a divorce just last month when R&B singer Ne-Yo requested that the judge in his Georgia divorce case dismiss the case. He had filed the initial divorce case recently, so the case likely did not get very far before reconciliation happened. It doesn’t seem like the court has ruled on the motion yet, but if the Georgia courts are anything like Colorado courts, the judge will grant his request no questions asked.

Irretrievable Breakdown – Only Grounds for Colorado Divorce

Colorado is a no-fault state which means that only grounds necessary for divorce is that the marriage is irretrievably broken. If both parties agree the marriage is irretrievably broken, the Court shall enter a decree of dissolution. C.R.S. 14-10-110(1).

What’s less common is when one spouse testifies at the dissolution hearing that the marriage is not irretrievably broken – something that has happened several times in dissolution cases Graham.Law attorneys have participated in. This will not stop the divorce – each time, without fail, the court ends up entering a decree of dissolution, typically telling the reluctant spouse something along the lines of “Ma’am/Sir, it takes both spouses to make a marriage. I cannot stop the divorce if your spouse believes the marriage is broken and wants a divorce.”

Strictly speaking, the court is required to make specific findings as to the marriage being broken. Per C.R.S. 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.”

But before reluctant spouses get their hopes up by the prospect of the court delaying the dissolution to facilitate counseling per subsection (b), no Graham.Law attorney has ever seen that in our combined decades of experience.

In reality, all it takes to obtain a dissolution of marriage in Colorado is that one spouse believes the marriage is broken. The other spouse cannot stop the divorce, and the court will issue a decree even over the reluctant spouse’s objection.

But that does not mean a divorce is alway unstoppable…

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” (C.R.S. 14-10-106 before the court can enter a decree dissolving the marriage. C.R.S. 14-10-110(1)(a)(III). Though not stated as a reason in the statute, this does have the effect of imposing a “cooling off period” on the spouses, and therefore the opportunity to stop the divorce, or at least have time to slow it down.

That said, just because a divorce case is on file past the 91 day period does not mean that the case has to end with the couple getting divorced. In many cases where parties have reconciled early in the case, like Ne-Yo did, the party who filed the case can ask that the court dismiss or end the case. The exact process to stop the divorce depends on whether the other spouse had entered the case.

Stop the Divorce by Dismissing Your 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 is gone. Colo. R. Civ. P. 41(a)(1)(A). However, after the spouse has entered the case, the divorce cannot be stopped unilaterally; dismissal requires both spouses’ agreement.

Stopping the Divorce By Dismissal

If both parties agree, they can file a joint motion or stipulation to dismiss the case entirely. The dismissal would be “without prejudice”, which is a legal term meaning that while it stops that particular divorce proceeding, either spouse is free to bring a new dissolution of marriage action at any time. Colo. R. Civ. P. 41(a)(1)(B).

Even if both parties don’t agree, the filing spouse can still seek to dismiss the case by filing a motion, however the judge is unlikely to dismiss the matter if the other spouse objects. (We’ve never seen it happen). And even if, somehow, the case were dismissed over the objection of the other spouse, that spouse could simply refile a new dissolution.

If a divorce is stopped and the case dismissed, that means any orders issued could be vacated (cancelled or stopped) entirely, and if the parties decide down the road that reconciliation did not work, a whole new case would need to be filed.

Staying or Suspending a Case to Stop a Divorce

An alternative to stopping a divorce is slowing it down. A couple which wishes to reconcile during a divorce case can ask the court for a stay of proceedings. A stay is essentially like pressing the pause button on a case. The divorce is not officially stopped, as the case remains open for a period of months, and all orders issued to date stay in effect. The divorce is effectively frozen in place for a period of time..

A stay can be issued for a few weeks or a few months depending on the judge and the circumstances. (In the past, stays of six months were fairly common, but in more recent years, judges are more reluctant to let dormant cases remain open that long, so typically grant stays for 3-4 months).

When the stay has expired, the case is automatically dismissed unless one or both of the spouses has filed a pleading advising the court that the case is back on. If the divorce case does resume, it simply picks up just where it left off.

The obvious advantage of a stay is that the divorce was not completely stopped – if the reconciliation process is unsuccessful, the spouses do not need to start a whole new case. This is an attractive option if the spouses have already spent a significant amount of time and money through the divorce process. However, the disadvantage is that the stay is limited in duration, and having the case hanging over the spouses’ heads may hurt the chances of reconciliation.

Convert to a Legal Separation – Not Really Stopping a Divorce

This is not really a way to stop a divorce, but to change the nature of the proceeding. You can convert the divorce into a legal separation proceeding. A legal separation is procedurally identical to a divorce, but at the end of the matter, the spouses are still technically married for some purposes, and treated as divorced for others.

As with a dismissal of the divorce, 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 a decree of dissolution, not a legal separation:

“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.”

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

Stop a Divorce by Doing Nothing

This last way of ending a divorce proceeding is not specifically authorized, but if the spouses file for divorce, and then neither of them actually does anything and they let the matter lapse, ultimately the court will dismiss it pursuant to Colo. R. Civ. P. 41(b)(2) for “failure to prosecute.”

Stopping a divorce by doing nothing

The full process for a dismissal for failure to prosecute is set forth in Colo. R. Civ. P. 121, § 1-10, but in short, the court issues a “delay prevention order” threatening dismissal unless one of the parties does something within 35 days. Do nothing, and the Court itself will stop the divorce.

At Graham.Law we have had clients retain us who had previously filed for dissolution without counsel, but neither party then moved the case along, so the court dismissed it. A dismissal for failure to prosecute is rare when a spouse has counsel, not least of which because it risks the attorney being perceived as a “slacker” by the court. Moreover, as a courtesy to the court, a family law attorney’s instinct is to advise the judge of the status of a pending divorce case. So while pro se clients without attorneys can do this, don’t count on a reputable family law attorney using this method to stop a divorce.

More Information

For a more in-depth discussion of the cases and court rules regarding the dismissal of a petition for dissolution, see our all-new article in the Colorado Family Law Guide, Stopping a Divorce After Petition Filed.

Award-Winning Colorado Springs Divorce Attorneys

U.S. News & World Report calls Graham.Law one of the Best Law Firms in America, and our managing partner is a Colorado Super Lawyer. Our family law attorneys have years of experience helping clients navigate the Colorado legal system. We know Colorado divorce & family law inside and out, from complex multi-million dollar property or child custody cases to basic child support modifications.

For more information about our top-rated El Paso County family law firm, contact us by filling out the form on the right or calling us at (719) 630-1123 to set up a free consult, or click on:

Colorado Family Law. Period.

Testimonials

  • Excellent discussion; fully answered all my questions with examples I could clearly understand

    Jane Rohr Avatar
    Jane Rohr
    3/26/2020
  • Carl Graham is by far the best divorce attorney I have used and would highly recommend him to anyone who is looking for an ethical, knowledgable, fair attorney. My case was not your normal circumstanc... read more

    Gary Oldguy Avatar
    Gary Oldguy
    3/17/2020
  • As a former military spouse trying to collect my share of my ex's military retirement from California when the divorce decree and all the supporting documents were filed in Colorado i was apprehensive... read more

    Janine Pandher Avatar
    Janine Pandher
    3/01/2020
  • Where do I begin? Well AFTER have a consultation with another attorney ( who made me feel as though i was undeserving of his expertise) I was extremely apprehensive when coming to Graham Law. This was... read more

    Chris Whitfield Avatar
    Chris Whitfield
    2/07/2020
  • Mr. Carl Graham, Cindi (his paralegal), and the rest of his office staff helped us with a military divorce. Mr. Graham is very knowledgeable about military ways and processes. I appreciated the fact... read more

    Shelle Dier Avatar
    Shelle Dier
    1/08/2020
  • If you are searching for a divorce lawyer, first I would like to say I’m sorry you are going through this. It isn’t and easy road. I know sometimes things just don’t work out to save your marriage. Ho... read more

    Trevor Lisby Avatar
    Trevor Lisby
    11/26/2019
  • If you are searching for a divorce lawyer, first I would like to say I’m sorry you are going through this. It isn’t and easy road. I know sometimes things just don’t work out to save your marriage. Ho... read more

    Trevor Lisby Avatar
    Trevor Lisby
    10/30/2019
  • I called Graham law firm to schedule a consultation and spoke with Corinna. When beginning your search for information with any family matters there are many questions and a sense of anxiety of the u... read more

    Kathlena Williams Avatar
    Kathlena Williams
    8/26/2019
  • I was divorced in CO but moved to TX & had issues with my divorce decree from a previous attorney- after referrals from several other firms in CO regarding the best military law firm I went with Graha... read more

    Sarah DeLorean Avatar
    Sarah DeLorean
    8/26/2019
  • Very helpful initial meeting.

    Steven Babbitt Avatar
    Steven Babbitt
    6/26/2019
  • Carl and his team are awesome and super easy to work with. His knowledge is tremendous and he quickly handled my case despite me being across the country. I would do business with his team again and... read more

    Michael Brooks Avatar
    Michael Brooks
    5/26/2019
  • I was impressed by Graham Law in general but most impressed with Brian Boney. Brian is an excellent family law attorney. Attentive, detail-oriented, and hard-working, Brian surpassed my expectations f... read more

    Robert Weeks Avatar
    Robert Weeks
    5/26/2019
  • Mr. Grahm was professional, knowledgable and very prepared. He was also kind and understanding. He knew his military in's and outs. Because of this is got exactly what I was asking for... a swift a... read more

    MAMCO STAFF Avatar
    MAMCO STAFF
    4/26/2019
  • I had the unpleasant task of taking my ex back to court. Carl was the person for the job. His attention to detail and professionalism got me the result I needed. Sincere thanks to Carl and his great s... read more

    Lisa Bruinsma Avatar
    Lisa Bruinsma
    4/26/2019
  • This firm is quite wonderful....very family and military oriented. Compassionate and patient, very understanding and will go to bat for you!!!!! Give them a call!!!!!

    Teresa Wilkie Avatar
    Teresa Wilkie
    4/26/2019
  • Brian did an amazing job helping me with a personal matter! Its not the first time I ask Brian for help, and every time he exceeds my expectations! Thank you for your kindness, understanding and suppo... read more

    Iryna Volynets Avatar
    Iryna Volynets
    4/26/2019
  • Divorce is never easy, but Carl and his warm team helped me navigate this very difficult time. This was a military divorce, so Carl's expertise helped me understand exactly what my options were as a f... read more

    Kara Longmire Avatar
    Kara Longmire
    4/26/2019
  • I have had two occasions that I have needed Carl Graham's assistance with child support issues and both times Mr. Graham and his team were amazing. Mr. Graham is straight forward and honest. I highly ... read more

    Jason Ragland Avatar
    Jason Ragland
    4/26/2019
  • Can't thank the team enough.

    Kevin Czarnecki Avatar
    Kevin Czarnecki
    4/26/2019
  • Very professional and extremely supportive throughout my needs.

    Doyle McNeil Avatar
    Doyle McNeil
    4/26/2019

Contact