When parties jointly file a stipulation of dismissal, the dismissal is generally without prejudice unless otherwise stated in the notice or stipulation


Law Lessons from Schmidt v. Schmidt, N.J. Chancery Div. (Jones, J.S.C.), DOCKET NO. FM-15-608-16, December 14, 2016:

Pursuant to Rule 5:1-1, Part V of the Court Rules govern family law actions. Further, family actions are also governed by civil rules in Part IV of the Court Rules as applicable, except as otherwise provided by Part V.

Pursuant to Rule 4:37-1, when parties jointly file a stipulation of dismissal, the dismissal is generally without prejudice unless otherwise stated in the notice or stipulation. Pursuant to Rule 5:5-7, a party seeking to proceed with a divorce following a prior dismissal of the pleadings “shall file an affidavit stating the reasons for the delay, the relations of the parties toward each other since the commencement of the action, and any agreements or understandings between them.”

Moreover, Rule 1:13-7 sets general time provisions for reinstating a case which has been dismissed without prejudice “for lack of prosecution”. Pursuant to Rule 1:13-7(a), a motion to reinstate a dismissed complaint shall be granted on good cause shown if filed within 90 days of the order of dismissal, and thereafter shall be granted upon a showing of exceptional circumstances. Traditionally, a court may issue an order of dismissal for lack of prosecution under Rule 1:13-7 when the filing party simply does not proceed with his or her case, such as by failing to serve a filed complaint, or not proceeding with entry of default within the applicable time period after service of process.

Once over 90 days have passed since a consensual dismissal, by applying the logic of Rule 1:13-7, the inquiry is whether “exceptional circumstances” exist to permit plaintiff to simply reinstate his prior divorce complaint, as opposed to requiring plaintiff to file a whole new divorce action. What, however, are “exceptional circumstances” which would support a reinstatement of plaintiff’s complaint more than ninety days after voluntary dismissal? The Rules do not provide a direct answer, and implicitly leave the matter to the Court’s equitable discretion.

One such exceptional circumstance is that (a) the prior litigation was dismissed relatively recently, even if over 90 days ago, and (b) the express reason for the dismissal was that both parties were voluntarily trying to save their marriage. Prior courts have in fact recognized that there is a strong public policy of preserving marriages and, when there has been a separation and when appropriate [in certain factual instances, such as when there is domestic violence restraining order between the parties or allegations of abuse or safety risks, this public policy does not apply], for society to encourage attempts at reconciliation between two willing spouses. See Brazina v. Brazina, 233 N.J. Super 145, 149 (Ch. Div. 1989). For this very reason, New Jersey’s divorce statute authorizes a court to grant a no-fault divorce when the parties have irreconcilable differences with no reasonable prospect of reconciliation. See N.J.S.A. 2A:34-2(i).

Sometimes, however, parties need a “trial reconciliation” before they can agree to permanently resume a marriage in all aspects. Brazina, supra, 233 N.J. Super at 149. It is true that there is also a well-recognized public policy in New Jersey supporting the termination of dead marriages. See Babushik v. Babushik, 157 N.J. Super. 128, 130 (Ch. Div. 1978). Yet, by virtue of the parties’ own prior stipulation, the marriage still had a chance of survival as of the time of the prior dismissal, and consistent with public policy, the parties deserved the opportunity to try making their marriage work.

While the parties’ efforts of reconciliation may have been unsuccessful, at least they tried. Moreover, an inordinate amount of time has not elapsed since the prior dismissal, even if such time did technically exceed 90 days. While the court might view this matter differently if plaintiff had waited years, or even over one year, to request reinstatement his prior complaint, the court finds that the passage of only eight months since the prior dismissal is reasonably recent enough to permit the reinstatement of the complaint, as opposed to requiring plaintiff to pay two financially significant divorce filing fees within one year just because he and defendant tried to save their marriage.

The policy of encouraging mutual efforts at attempted reconciliation is in fact important enough to reinstate this matter. Otherwise, the court would essentially be financially penalizing a defendant for previously stopping the prior litigation in order for both parties to work on possibly saving their marriage. It is important to avoid imposing unnecessary or unreasonable legal consequences upon litigants which could discourage parties from attempting a reconciliation, out of fear that an unsuccessful reconciliation effort could result in adverse legal or financial consequences. See Brazina, supra, 233 N.J. Super at 149.

Even though the attempted reconciliation lasted only eight months, it is possible that one or both parties incurred significant assets or debts during that period of time. Generally, for equitable distribution purposes under N.J.S.A. 2A:34-23.1, the marriage cut-off date is the date that plaintiff files a complaint for divorce. See Painter v. Painter, 65 N.J. 196, 218 (1974); Kakstys v. Stevens, 442 N.J. Super 501, 507 (Ch. Div. 2015). However, the New Jersey Supreme Court has further held that under Painter, in order for a divorce complaint to mark the end of the marriage for purposes of equitable distribution, the complaint must commence a proceeding which culminates in a final judgment of divorce. See Portner v. Portner, 93 N.J. 215, 220 (1983).

Under these circumstances , the reinstatement of the prior divorce complaint does not mean that the cut-off date for equitable distribution of all assets or debts automatically remains the filing date of the original complaint for divorce. Rather, even if the complaint is retroactively reinstated, any assets or debts acquired together during the period of reconciliation may potentially be subject to equitable distribution as well. See Brazina, supra, 233 N.J. Super at 154 (increase in value of an asset held in name of one party during reconciliation is subject to equitable distribution). Any issues or arguments regarding the appropriate and equitable distribution of specific assets or debts acquired by the parties during the period of attempted reconciliation may be preserved for trial, if the parties are unable to amicably resolve and settle such issues between themselves.

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