While it does not happen with any great frequency, parties may from time to time change their mind about proceeding with a pending divorce or legal separation case.

How a family law action may be dismissed varies on whether the other party has filed any responsive pleadings or motions in the case.

The statute dealing with the dismissal of a family law action falls under Wis. Stat. section 767.264 and reads:

767.264 Dismissal; vacation; substitution or withdrawal of attorney.
(1) Opportunity to respond. An action affecting the family may not be dismissed under s. 805.04 (1) unless all the parties who have appeared in the action have been served with a copy of the notice of dismissal and have had an opportunity to file a responsive pleading or motion.

Therefore, we then must look to Wis. Stat. section 805.04 regarding voluntary dismissals. Section 805.04 states:

805.04 Voluntary dismissal: effect thereof.
(1)  By plaintiff; by stipulation. An action may be dismissed by the plaintiff without order of court by serving and filing a notice of dismissal at any time before service by an adverse party of responsive pleading or motion or by the filing of a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is not on the merits, except that a notice of dismissal operates as an adjudication on the merits when filed by a plaintiff who has once dismissed in any court an action based on or including the same claim.

(2) By order of court. Except as provided in sub. (1), an action shall not be dismissed at the plaintiff's instance save upon order of court and upon such terms and conditions as the court deems proper. Unless otherwise specified in the order, a dismissal under this subsection is not on the merits.

(3) Counterclaim, cross claim and 3rd-party claim. This section applies to the voluntary dismissal of any counterclaim, cross claim, or 3rd-party claim. A voluntary dismissal by the claimant alone shall be made before a responsive pleading is served, or if there is none, before the introduction of evidence at the trial or hearing.

(4) Costs of previously dismissed action. If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it deems proper and may stay proceedings in the action until the plaintiff has complied with the order.

Furthermore, in the case of Gowan v. McClure,¹ the court held that a voluntary dismissal initiated by the plaintiff was not attainable once another party filed a response in that action.

Takeaways

What are the takeaways between the two statutory sections?

There are two different ways that a family law action may be dismissed:

• A notice of voluntary dismissal may be filed by the petitioner at any time, providing that no responsive pleadings or motions have been filed by the respondent. The notice of voluntary dismissal must also be served on all parties who have appeared in the action and they must be given an opportunity to file a responsive pleading or motion.

• In the event that the respondent has previously filed a response or motion to the family law action, then in that event, the matter can only be dismissed based upon a stipulation of dismissal signed by the parties who have appeared in the action.

It is also important to point out that any dismissal of a family law action, whether by notice or agreement, must be done without prejudice and typically without costs to either party.

Further, it is important when representing the respondent, to avoid being the victim of a family law case being dismissed by the petitioner, that a response to petition and counterclaim is promptly filed with the court, within the 20-day statutory time limit as required under Wis. Stat. section 767.217(3).

Registration for the 40^th annual Family Law Workshop is now open! The workshop will be held virtually on Aug. 5-6, 2021. For more information and full details, see the Family Law Workshop on WisBar.org's Marketplace.

This article was originally published on the State Bar of Wisconsin’s Family Law Section Blog. Visit the State Bar sections or the Family Law Section webpages to learn more about the benefits of section membership.

Endnote

¹ Gowan v. McClure, 185 Wis. 2d 903, 519 N.W.2d 692 (Ct. App. 1994).