New York Court Rules Against Husband’s Voluntary Discontinuance of Divorce Case

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Obtaining a divorce in New York City requires filing a lawsuit, of sorts, and obtaining a judge’s approval on a final judgment. Even if the parties are able to agree the terms of the divorce, the judge must sign a final judgment. Parties to a divorce may choose to reconcile, and therefore to discontinue the court proceeding. New York law and court rules set certain limits, however, on when a plaintiff can discontinue a divorce suit without the court’s permission. A Manhattan court recently considered a husband’s effort to unilaterally discontinue a divorce case in Marcilio v. Hennessy, ruling that his notice was untimely and barred by equitable principles.

Divorce cases in New York may proceed in much the same way as other lawsuits. One of the spouses, as plaintiff, files a complaint with the Supreme Court of their county. The plaintiff must provide notice to the other party, i.e. their spouse. In many divorce cases, the plaintiff does not formally serve their spouse with papers, in the interest of maintaining a relatively civil atmosphere.

New York recently enacted a “no-fault” divorce law, meaning that a plaintiff in a divorce case is no longer required to allege fault in the breakdown of the marriage. This has, at least somewhat, helped keep more amicable divorce cases from becoming contentious. It also allows parties to focus on resolving issues like property division and child support. Once this process is underway, New York court rules set limits on when a plaintiff can discontinue a case.

Rule 3217(a)(1) of New York’s Civil Practice Law and Rules states that any party asserting a claim in a lawsuit may voluntarily discontinue their claim, without obtaining an order from the court, by serving notice on all other parties. This must occur before any other party files a response to their claim, or within twenty days of the date they served the other party or parties with notice of the claim. This rule is subject to additional time restrictions based on equitable concerns, such as unreasonable delay and prejudice to other parties. Divorce cases tend to present such equitable concerns.

The plaintiff/husband in Marcilio filed for divorce in November 2012. The wife sought “pendente lite relief,” which led to a hearing and an agreed order regarding issues like “living arrangements and access time with the parties’ two minor children.” Several years of motions and hearings followed, until the husband filed a notice of discontinuance in December 2014 without seeking a court order. The wife moved to vacate the notice.

The court granted the wife’s motion and vacated the notice of discontinuance. It stated that, in general, parties should have the flexibility to reach a settlement outside of the court system, noting that “raw emotion can often overwhelm reason” in divorce proceedings. In this case, however, the court found discontinuance under Rule 3217(a)(1) untimely and prejudicial to the wife’s interests. It further found that equitable estoppel barred the husband’s notice because of his own pattern of “meritless motions” and “unreasonable positions” during the previous two years.

A skilled and experienced family lawyer with knowledge of New York divorce law, and experience in the New York City court system, can help you understand your rights and obligations in a divorce proceeding or other family law matter, and can advocate for you to protect your interests and assets. For more than thirty years, Ingrid Gherman practiced family law in New York City. Please contact us online or at (212) 941-0767 today to schedule a confidential consultation to see how we can help you.

More Blog Posts:

Residency Requirements for a New York Divorce, New York Divorce Attorney Blog, March 4, 2016

Calculating Child Support Obligations in New York Divorce Cases, New York Divorce Attorney Blog, October 12, 2015

Can Ex-Spouses Keep Running a Business Together After a Divorce? New York Divorce Attorney Blog, October 2, 2015

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