Written by Avvo Staff

Your divorce case has been dismissed for want of prosecution – what now?

If your divorce has been “dismissed for want of prosecution,” you may have questions regarding what this means, why it happened, and what you can do about it.

What a want of prosecution means

A “dismissal for want of prosecution” (DWOP) is legalese for inactivity on a case. Essentially, the court wants to keep its calendar as clear as possible, getting rid of any cases that have sat idle for too long (how much time will vary from state to state). If you don’t respond to the court’s intent for dismissal for want of prosecution (basically a warning) the case will be closed—and you and your spouse will still be married. Courts generally give you about 30 days to respond to the intent, allowing you to make a plea as to why the case should remain open.

Why a want of prosecution happens

Even though papers have been filed, a divorce case can become inactive for a variety of reasons:

  1. Your spouse was never served with the divorce papers (for example, he/she was never tracked down).

  2. The spouse receiving the papers never filed a response.

  3. You, your spouse, or any of the attorneys involved missed a hearing for which a presence was required.

  4. Deadlines for things such as discovery (i.e., questions answered under oath about things such as finances) were missed.

  5. The spouse filing the divorce papers asks for a dismissal, perhaps because he or she wants to attempt a reconciliation, to wait until your children are older, or to delay any action until, say, you graduate from medical school, make partner in a firm or sell a home—things that may change your financial situation and any subsequent alimony/child support payments.

What you need to know

The first thing you need to do is speak to your lawyer to determine why the case was dismissed. Was your spouse served with the divorce papers? If he/she was served but never responded to the court (in Wisconsin, for example, a spouse has 20 days to respond to a motion for divorce), was a default ever entered? Were all hearings attended? Were deadlines met? If your attorney hasn't stayed on top of the proceedings, it may be time to seek other counsel (and ask for some sort of refund of your money). And if you are the one who has missed deadlines or appointments, you'll want to try and avoid this next time.

There are many options to keep your case active, even if your spouse is uncooperative. For example, if your spouse isn't cooperating with the proceedings—it’s still important for you to stay in touch with the court. If your spouse hasn't responded to the divorce papers, ask the court to enter a default. If he or she misses deadlines for discovery, file a motion to compel discovery. Even if the court denies your requests, it shows that you are moving forward—which will keep the case on the court's docket.

Getting your case reinstated

If, despite your good intentions, your divorce case ends up being dismissed, now what do you do? In most cases, a dismissal for want of prosecution is generally granted “without prejudice.” That means that you can re-open the case, although you may have to pay additional court fees.

One option, provided not too much time has elapsed since the dismissal (and this varies by state—in New Jersey, for example, it is within one year), is to file a motion to reinstate the case. The benefit to this is that you can pick up with the proceedings where you left off.

Another option is to simply re-file the case, which means starting over from ground zero. Your papers will have to be re-filed, your spouse served again, and any responses and discovery collected. It can be expensive, and a dismissal for want of prosecution is still possible if things are left to sit, but, hopefully, the case can then proceed as desired.

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