Divorce and Reconciliation Attempts

If there are no fault-based grounds for divorce in your case you will have to be separated for more than one year before you can file for divorce from your spouse.  Sometimes during that year separation a couple will want to “make sure” they have done everything they can to save their marriage and if it doesn’t work out then they can feel like they at least tried one last time.  So, this begs the question, if you do attempt reconciliation with your spouse will this start your one year time over?

The answer is, “it depends.”  How is that for a lawyer answer?

Really, it depends on a few things.  First, it depends on your intent when you and your spouse get back together.  If you believed and intended that you had resolved your differences and you were resuming the marital relationship then your time will probably start over.  If you go into it intending that this time is just a trial reconciliation and you are not intending to completely reconcile the marital relationship at this time then perhaps the time does not start over.

Next, the amount of time that you spent together will make a difference.  If it only lasted one night or a few days then it is more likely that a judge would allow you to proceed.  If it lasted for several weeks or months, it is more likely the time starts over.

Third – and this is probably the most important factor – it depends on which judge you have presiding at your trial.  A strict reading of the statute says that the one year period must be “continuous.”  That means with no interruptions.  So a very strict reading of the law means that any reconciliation attempt would start the time over.  From a public policy perspective this is bad.  This would mean that you would be punished by the Court (and the State, in essence) for trying to do everything possible to work out your marriage.  In other words, it appears that this strict reading would really be encouraging not attempting a reconciliation.

Other nearby states use a “totality of the circumstances” approach to determine whether a reconciliation attempt should start the clock over or should not.  That really means that the judge would listen to the reasons why you attempted reconciliation, how it went, what your intent was, how long you were back together, etc. to determine whether you should be able to proceed with your divorce on the no-fault ground or if you have to wait start the one year clock over again.

What are your thoughts?

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