Reconciliation and the Five-Year Dismissal Rule – In re Marriage of Honarkar

Spouses considering a divorce often have second thoughts, and many choose to give the marriage another chance before calling it quits. For those who try to reconcile after a petition for divorce has been filed in court, it’s important to keep in mind how this may affect the case from a legal perspective. In In re Marriage of Honarkar, the Fourth District Court of Appeals recently looked at one of these issues: the application of the five-year dismissal rule.

Husband filed a petition for divorce in September 2000, alleging that the couple had separated two months earlier. They’d been married for 16 years at the time and had two children. Wife responded to the petition by arguing that the couple had, in fact, not separated. Nothing further was filed and no action taken until Wife filed an amended response nearly six years later. This time, she said the parties had separated in December 2005. She also filed a motion asking the court to rule on custody of the children and support.

After Husband failed to respond to Wife’s motion and didn’t appear at the scheduled hearing, the court entered a November 2006 order granting the couple joint custody of their minor child and requiring Husband to pay Wife more than $24,000 per month in child and spousal support.

Another seven years went by before the trial court, on its own initiative, dismissed the divorce case pursuant to section 583.310 of the California Code of Civil Procedure. The statute states generally that all cases must be brought to trial or completed within five years of their initiation. Since the court issued the custody and support order more than five years after Husband originally filed for divorce, the court said that the order was also void.

Reversing the decision on appeal, the Fourth District said that the trial court overlooked an exception to section 583.310 for family law cases in which a spousal support order has been issued before a court moves to dismiss the case for timeliness reasons. The appeals court said the rule applied even in situations when that order was issued outside of the five-year period. “This is especially true given the specific facts of this case, and, in particular, the parties’ lengthy reconciliation,” the Court said.

In particular, the Court found that it would have been “impossible, impracticable, or futile” to bring the case to trial within the five-year period because Husband and Wife had reconciled. The Court noted that Wife said that the couple had reconciled, that they had bought a number of properties together, and that they had started a business together before an “abusive” incident led her to follow through with the divorce proceedings.

As a result, the Court said that the five-year limitations period was tolled during the reconciliation and that the case should not have been dismissed for lack of timeliness.

As this case shows, reconciliation can raise a number of legal issues for spouses who later decide to go ahead with seeking a divorce. The good news is that much of the legal wrangling can be minimized through alternatives to traditional divorce litigation, such as mediation and collaborative divorce. With offices throughout the San Francisco Bay Area, California divorce lawyer Lorna Jaynes provides innovative legal tools to resolve many family law disputes without the bitterness and acrimony engendered by the adversarial process.

Related blog posts:

Divorce, Spousal Support and Cohabitation – In re Marriage of Woillard

Untangling Shared Business Interests in California Divorce Cases – In re Marriage of Greaux and Mermin


Follow Procedural Rules in California Divorce Cases, Or It Might Cost You Your Case – In re Marriage of Kosharek

Contact Information