Legalities

Legalities, a weekly column that appears in the Help section of the Southern Illinoisan, is a free service of the Self Help Legal Center. You can visit the Southern Illinoisan website at: http://www.southernillinoisan.com

Q: I have filed for divorce, but now I have changed my mind. I have been told that I cannot stop this process once I have started it. Is that right? I have also been told that I will have to pay for all of my husband's attorney's fees. Is that right? If so, then what is to prevent my husband from running up a huge bill? A friend of mine told me that if I don't show up, my case would automatically get dismissed. Isn't that the easiest route?

A: How and whether you can stop your divorce and how much you will have to pay depends upon whether your case has had a trial or hearing.

The Illinois Code of Civil Procedure specifically grants to any plaintiff (the person who starts a lawsuit) the right to ask the court to voluntarily dismiss all or a part of his/her own petition or motion provided that no hearing or trial has begun. In almost all cases, a plaintiff's motion to dismiss his/her own complaint will be granted without further hearing. A plaintiff makes a motion to voluntarily dismiss his/her own petition by filing a motion and affidavit with the court and sending copies to the defendant (the person being sued )or his/her attorney.

If a trial or hearing has begun, the court can still grant the motion, but the law states that the plaintiff must get the defendant's approval or present a compelling reason/argument to the court. The farther a case has proceeded, the more compelling the reason must be.

In either situation, the plaintiff must pay the "costs" of the action. This could include filing costs, court costs, and even attorney's fees. The judge presiding over the case determines what the appropriate costs/fees are for a case, not your husband. Consequently, the judge may grant your motion to withdraw your divorce petition, but you may have to pay your husband's costs/fees.

Most (but not all) of the time, if the plaintiff (or his/her attorney) does not appear at the first scheduled hearing, the plaintiff's petition or motion will be dismissed. If a trial or hearing has already begun, however, the judge may not dismiss the case and may instead make a ruling on the plaintiff's motion. Even worse, if the defendant is present and he/she has filed an answer or raises a petition or motion of his own, the court could hear the defendant's motion or petition and make a ruling.

The problem, therefore, in not showing up is that you don't know what will happen - your case could be dismissed, it could proceed without you, or even worse, the other side could raise their own motion and you would not be present to defend yourself.

Do you have a legal question? Write us at Self Help Legal Center, SIU School of Law, Mailcode 6804, Carbondale, Illinois or e-mail us at selfhelp@siu.edu. Not all questions will be answered and may be edited for space or content.

Legalities is written by the Self Help Legal Center, a public service of the SIU School of Law. The Self Help Legal Center cannot provide legal representation. It can, however, help you find the answer to your legal problem. This column is for general legal information purposes only and the advice given in this column may not apply to your situation. For specific legal advice about your situation, you should consult an attorney licensed to practice in Illinois. This column is not meant to give legal advice and does not create an attorney-client relationship.