During the month of December, the New Hampshire Supreme Court upheld a lower Court’s decision that a couple cannot “un-divorce,” or “vacate” their divorce, by joint motion to the Court.
In this particular case, a couple that had divorced after 24 years of marriage petitioned the Court to vacate their final judgment of divorce, thus preserving the longevity of their relationship (resulting in their having been married without any break that would have been associated with their divorce – 25+ years). Though the parties presented actual reasons for wanting the Court to vacate their divorce (ie “social security spousal rights, pension rights, rights of inheritance, and other financial interests that will be adversely affected if the continuity of their long-term marriage is disrupted by a divorce that is no longer necessary”), the Court did not find that action within its statutory powers after analysis of the law.
The Court acknowledged that is has the power to set aside, vacate, modify, or amend a judgment when “for good cause shown.” In the case of divorce, this means that the Court may set aside or vacate a final judgement of divorce “when procured by fraud, accident, mistake, or misfortune.” Here, where a joint motion was made by the parties due to their now reconciliation coupled with the negative ramifications resulting from their divorce, the Court did not agree that the law permitted it to set aside or vacate the divorce.
Why not simply re-marry? Of course, this couple is able to re-marry. For some purposes, however, the length of their marriage will only calculate from the first day of their second marriage (rather than from 26+ years ago). This might hurt them financially. This could affect receipt of benefits. This could affect inheritance issues.
This decision begs the question “what do you do if you are unsure about whether or not to file for divorce?” Speak to an attorney about the benefits of filing now versus waiting until later. Speak to a tax specialist, accountant and/or financial planner about the financial ramifications of filing now versus later. Speak to a counselor or therapist about your feelings, your relationship and your goals for the future. Together, these people can help you to make the best decision for you.
If you have already filed for divorce and are finding yourself second guessing that decision, for whatever reason, consult with your attorney about making a motion to place the divorce proceedings in abeyance for a period of six (6) months. This will allow you work on reconciliation or to be certain about your decision to divorce. Particularly where both parties make this request, it is met with positive response from the Court.
If you find yourself in this situation, or in any family law type legal matter, please always feel free to call and discuss your case. Contact me here to ask question or to schedule a consultation about your case.
