If you want to go back and rescind, or alter, the terms of your divorce, what your options are largely depend on where you are in the process and what you have signed thus far. When you decided to divorce, you initially signed a Complaint for divorce. Once you sign the Complaint, there is a mandatory thirty day “cooling off” period under Alabama law. If you decide to rescind your divorce during that thirty-day window, it should be relatively easy to do as that is what the cooling off period is designed for (to make sure both parties are certain divorce is what they want). You would need to file a Request for Dismissal with the court. However, if your spouse filed a counterclaim against you they need to file a Request for Dismissal as well. Otherwise, the counterclaim could move forward without your involvement.
If you filed for an uncontested divorce, you also had to sign a Settlement Agreement. This shows the court you agree on all the terms of the divorce and the “who gets what” after your divorce is finalized. If you’ve already signed the Settlement Agreement and you no longer want to agree to those terms, you should consult with your divorce attorney. Rescinding the Settlement Agreement is harder than rescinding the Complaint for Divorce and you will likely need the help of an attorney to accomplish it.
If you’ve already submitted the Settlement Agreement, your attorney will need to file a motion to rescind the Settlement Agreement immediately and give your reasoning for why the agreement should be rescinded. If you want to change the terms of the Settlement Agreement, especially if your spouse does not, the divorce is no longer uncontested. This will reclassify the divorce as contested and cause the divorce process to go much more slowly.
What if we are already legally divorced? It becomes much harder to amend or withdraw divorce petitions after the judge has signed the final divorce decree. If you change your mind after the decree is signed, you have limited options. Divorce decrees cannot be appealed like most cases decided by a judge. Instead, you would have to convince the judge to re-open the case. Changing your mind is unlikely to be a compelling enough reason for the judge to do that. Generally, a judge will only re-open a case if one or both party’s circumstances have significantly changed or if fraud was involved in the divorce negotiations. Things like lying about income, concealing assets, or demonstrating you were coerced into signing the Settlement Agreement are examples of why a judge may re-open a case. Otherwise, once the decree is signed, the terms of the divorce may only be altered by mutual consent of the parties with few exceptions.
If the final decree has not been signed by the judge, the parties can usually amend or withdraw their divorce petitions. How difficult that may be depends on how far into the process you are. When a judge signs the decree, you are legally divorced. If both parties want to rescind the decree, it may be easier to simply re-marry. Our local divorce lawyer can advise you on how to best achieve your goals if you change your mind once you have filed for divorce.
Attorney Steven A. Harris regularly blogs in the areas of family law, bankruptcy, probate, and real estate closings on this website. Mr. Harris tries to provide informative information to the public in easily digestible formats. Hopefully you enjoyed this article and feel free to supply feedback. We appreciate our readers & love to hear from you!