I received this question recently:
I filed a fault divorce and my husband has not been served yet, I am having second thought about this divorce and not sure if I want to go through with it. Is it too late to stop?
Sometimes people really think they are ready to file for divorce, but when it comes to filing and getting ready to serve the papers, reality can set it and sometimes when you re-evaluate your situation a divorce may not be the best way to go. But the questions is are you stuck with the divorce if you have filed it but it hasn’t been served yet.
Rule 41(a)(1), South Carolina Rules of Civil Procedure states that, “an action may be dismissed by the plaintiff without order of court…by filing and serving a notice of dismissal at any time before service by the adverse party of an answer or motion for summary judgment, whichever first occurs[.]”
Since your husband has not been served with the Summons and Complaint you filed, you will be able to dismiss your divorce action by submitting an order of dismissal to the Family Court and paying the motion fee of $25.00. This dismissal is typically “without prejudice” which means that you may file for divorce again and allege the same claims as you did in the current divorce complaint and you will not be penalized.
Occasionally, a client will decide to reconcile with their spouse after service of the Summons and Complaint – sometimes much later in the litigation. In the event the parties mutually agree to dismiss the divorce action, they both are required to sign an order consenting with the dismissal. This dismissal is also without prejudice unless otherwise stated.