Revoking a divorce?
June 1, 2011 5 Comments
Years ago while sitting in Professor Shelton Hand’s Domestic Relations class, I heard mention of a legal procedure that struck me as odd. The procedure? Revoking a divorce or as my clients have called it…. “getting un-divorced” or “annulling a divorce.” Regardless of how potential clients refer to the process, the Mississippi Legislature uses the term “revoke” so I try to do the same.
The first things my clients want to know is what does it cost, how long will it take and what is the process. It doesn’t cost much because it doesn take much time or effort to complete (at least not much effort from me…the parties have to put a heck of a lot of effort into getting the marriage back together). The statute provides the conditions which must be met. There is no waiting period or time requirement.
§ 93-5-31. Judgment of divorce may be revoked
The judgment of divorce from the bonds of matrimony may be revoked at any time by the court which granted it, under such regulations and restrictions as it may deem proper to impose, upon the joint application of the parties, and upon the production of satisfactory evidence of their reconciliation.
1. A judgment of divorce can be revoked at any time;
2. By the Court which granted it;
3. Under such regulations and restrictions the Court finds proper;
4. Upon the joint application of the parties; and
5. Upon the production of satisfactory evidence of reconciliation.
In practice, the parties make a joint application for revocation of the judgment of divorce to the court which granted the original judgment. The joint application recites the particulars of who, what, when, where and how of the divorce and reconciliation. Then, the parties accompany their lawyer to the next available ex parte hearing with the Chancellor to obtain the judgment revoking the divorce.
One word of caution, I have never witnessed a Chancellor question the parties or require proof of the reconciliation beyond that asserted in the joint application, but it is certainly possible. Make sure your clients are prepared to take the stand if needed.
Revoking a divorce leads to some interesting legal questions. If one or both of the parties engages in sexual relations with another person between the divorce and the revocation, is that adultery? No. See Devereaux v. Devereaux, 493 So.2d 1310 (Miss. 1986). If property is awarded to one party in the divorce decree, does that property become marital property when the divorce is revoked? Probably not unless the parties’ application for revocation and the judgment specifically revoke the property settlement agreement as well. In Deveraux, the property awarded to the wife remained her separate property despite the revocation (their application and the judgment of revocation were silent on the issue of property). Stated another way, the revocation in and of itself did not alter the property rights of the parties.
Given the choice of helping a client obtain a divorce or revoke a divorce, I will go with the revocation. Much like an adoption, it is one of the few legal matters in which everyone leaves happy.