The Effect of Marriage Reconciliation on Divorce Proceedings

At the conclusion of a California divorce case, a Judgment for Dissolution will be entered by the court. This will occur following a trial or execution of a settlement agreement. Any violation of terms set forth in the Judgment for Dissolution will be a violation of a court order and is punishable under the law.

If a couple decides to reconcile following the entry of their divorce judgment, the terms contained therein will still remain enforceable. 

Marriage reconciliation after a divorce is finalized

The Judgment of Dissolution from the spouses’ original marriage sets forth the community property division which resulted from that marriage taking into account date of marriage, property acquired during the marriage, specific agreements between the parties before, during, and after the marriage, etc.

If parties to a dissolution intend to reconcile and wish to remain married, that may be possible depending on timing. In California, there is a mandatory six-month “cooling off” period following the commencement of a dissolution action.

If the spouses have filed a Judgment of Dissolution prior to the expiration of the six-month cooling off period, the judgment can be vacated and the divorce case dismissed. 

Time will be of the essence in this scenario so it is important to speak with an attorney as soon as possible if you have a recent divorce judgment that you would like to set aside. If the set aside is timely executed, the spouses can continue on in their marriage as if no divorce proceeding had been initiated.

Dismissing a divorce case before it is finalized

There is also the possibility of reconciliation after filing for divorce, but before entry of a Judgment of Dissolution. As long as a Judgment of Dissolution has not been entered in the case as to any issues, the petitioner (if no response has been filed) or the parties jointly can dismiss the action.

Once the dismissal is processed, the parties can continue on in their marriage as if no divorce proceeding had been initiated.  If the reconciliation in this case is unsuccessful and the parties wish to divorce, one party will have to initiate the process again.

If the case is dismissed, any temporary agreements or orders that were made under the pending divorce case (for example, child custody or support) will be void. The parties will have to start again from scratch should the reconciliation not work out. (Note that this includes having to re-file the petition for divorce and re-pay the $435 filing fee.) In some situations, the reconciliation can be used as a “second bite at the apple” by one party who is unhappy with the current orders.

If the parties are considering reconciliation, but aren’t quite ready to dismiss the action, they can report the attempted reconciliation to the court at a Family Resolution Conference. They can agree to a stay of proceedings via a written stipulation. 

However, the court will have ultimate authority to determine how long to permit a stay. Generally, courts do not let cases drag on for years in “limbo” and will force the parties to decide to pursue the case or dismiss it. 

During a stay of proceedings, generally all the temporary orders will remain in full force and effect. This means that support orders must be met and custody shared as ordered by the court. If the parties would like to deviate from those temporary orders, they can file a stipulation setting forth their new agreements during the pending reconciliation.  

The parties can agree that the prior orders will resume if the reconciliation is unsuccessful. However, the reconciliation period may impact later modification of those orders. 

For example, if one parent has limited custody time under the temporary order, but spends much more time with the children over a six month reconciliation period, that could be the basis for a custody modification. The court will not ignore the new status quo or that parent’s considerable time spent with the children just because the legal proceedings were on hold. The court will make custody orders based on the best interest of the children. 

In addition, reconciliation attempts can muddy the waters when it comes to the “date of separation”. If the parties resume their marital relationship, one side could argue for a later date of separation. This extends the length of the marital economic community and could bring any earnings and accumulations of the parties during that time into the community. 

The best practice here would be to address the date of separation and all temporary orders in a written stipulation regarding the attempted reconciliation prior to the commencement.

Legal separation before divorce

A legal separation is not the same as an attempted reconciliation. Similar to a divorce proceeding, a separation begins with the filing of a petition. Parties must exchange disclosures, property can be divided, support ordered, and custody decided. 

The main difference between a dissolution action and a legal separation is that following the legal separation, the parties are still legally married. If a party to a legal separation would like to be divorced, he or she must initiate a divorce action by filing a new petition and going through the divorce process.

Many potential divorce clients assume legal separation is a natural first step if they are not fully committed to a divorce case. However, legal separation is not a form of “trial reconciliation”, it is a legal proceeding to divide property and obtain custody and support orders.

A legal separation action can be easily converted to a divorce action if either side would like a divorce instead of a legal separation. Both parties must agree to proceed with a legal separation, but only one party to a divorce is required to proceed with a dissolution action.

If you have questions about filing for divorce and are also contemplating reconciliation, consult an attorney at Cage & Miles, LLP today for a free consultation.