Can the California Family Court Dismiss My Case?


It is no secret that courts would prefer not to have stacks of inactive files sitting around collecting dust and taking up space. Whether it is because a litigant didn’t understand the legal process and simply failed to follow through with his/her family law case, spouses reconciled and abandoned their divorce case, or an adoption petition was filed but never served, there are many reasons cases become inactive in the family law system.

Under What Circumstances Can the Family Court Dismiss Your Case?

Sometimes the family court can dismiss the entire case on its own, and other times one or both parties request the court dismiss the case.

For these reasons, the California legislature has developed a set of rules outlining the procedure for “dismissing” (i.e. cancelling) a family law case, and under what circumstances dismissal is and isn’t possible.

Reasons A Family Law Case May be Dismissed

Code of Civil Procedure 581 provides in relevant part as follows:

(b) An action may be dismissed in any of the following instances:

(1) With or without prejudice, upon written request of the plaintiff to the clerk, filed with papers in the case, or by oral or written request to the court at any time before the actual commencement of trial, upon payment of the costs, if any.

(2) With or without prejudice, by any party upon the written consent of all other parties.

(3) By the court, without prejudice, when no party appears for trial following 30 days’ notice of time and place of trial.

This essentially means that the petitioning party can request dismissal of the case at any time prior to the responding party filing a responsive pleading. The case can also be dismissed if all parties and attorneys of record are in agreement with the dismissal and they sign and submit the appropriate documents with the court. The required forms to dismiss a case are:
  1. Request for Dismissal (CIV-110); and
  2. Notice of Entry of Dismissal and Proof of Service (CIV-120).

Divorce Case Dismissal for Lack of Prosecution – Potential Legal Problems

Section 583.310 of the Code of Civil Procedure also provides that cases can be dismissed for “delay in prosecution” if they are not brought to trial or judgment within 5 years of being filed because California public policy favors timely resolutions of legal matters.

This means that if you filed a petition to establish parental rights or for divorce more than 5 years ago and never followed up to complete the case, the family court may have already dismissed your case for lack of prosecution because the courts don’t want old, inactive case (i.e. files) hanging around indefinitely.

Can the Family Court Dismiss My Case California Dismissed Dismissal Divorce Attorney Lawyer

Once your case is dismissed, if you want to get family court orders, an entirely new case needs to be filed.

This can become highly problematic in the case of a divorce because it is not unusual for a litigant spouse to file a petition for divorce in California and assume that means they are divorced, only to find out years later that their case was dismissed for lack of prosecution and they are still married!

As you can imagine, this leads to a plethora of legal, financial, and interpersonal problems. Under these circumstances, the litigant who assumed he or she was already divorced may remarry, buy or sell real property, or have children with a new partner. Any one of these seemingly innocent acts can create serious legal headaches if the litigant spouse is actually still legally married to his or her not-so-ex-spouse.

In California, a person can’t be married to two people at one time, so if the litigant spouse in our example remarries, assuming he or she is divorced, the subsequent marriage is void (i.e. not a legal marriage) because the litigant spouse is still married to spouse #1. Under these circumstances, the litigant spouse would be faced with the legal issues involved with refiling for divorce from spouse #1, along with the emotional trauma learning of the invalidity of his or her marriage puts on the litigant spouse’s new “spouse.” That would strain even the strongest of relationships.

If the litigant spouse sells real property with a community interest, various legal and financial issues may arise, such as, tracing complications, breach of fiduciary duties owed to the other spouse, claims for reimbursements, etc. Likewise, the litigant spouse may run into legal trouble if he or she buys real property while still unwittingly married to spouse #1. Spouse #1 may come out of the woodwork to claim a community property interest in property the litigant spouse acquired during the time he or she assumed he or she was divorced.

If the litigant has children with another partner while still legally married to his/her spouse, conclusive presumptions of paternity may arise creating very serious legal issues for everyone involved, including the child.

These are just a few of the potential issues which may arise if a family law case is dismissed for lack of prosecution. If you find yourself in this situation, it is advisable that you seek the assistance of a knowledgeable family law attorney to re-file your case and help you get the court orders you want.

Reasons A Family Law Case Can’t be Dismissed

CCP 583.161 provides that a family law case cannot be dismissed in the following circumstances:

  • A Judgment has been entered;
  • A spousal support order has been issued and has not been terminated;
  • A child support order has been issued and has not been terminated;
  • A child custody and visitation order has been issued and has not been terminated;
  • A restraining order or temporary restraining order has been issued under the Domestic Violence Prevention Act (The clerk cannot dismiss a case until after the court date or the TRO is no longer in effect); or
  • A hearing date is still on calendar.

If you want to dismiss your family law case, but one of the above circumstances exists, a California family attorney may be able to help get you the results you want.

California’s family law procedures are complex and trying to navigate them without help of a California family lawyer can be frustrating. If you have questions about family law procedures, contact our accomplished and dedicated family law, divorce, and child custody lawyers by calling (844) 4-TALKOV (825568) or contact us online for a free consultation with our experienced family law attorney, Colleen Talkov, who can guide you through the court process in a prompt and clear manner.

Our knowledgeable attorneys can also help if you have questions about any of the following:
About Colleen Talkov

Colleen Talkov is a Family Law Attorney at Talkov Law in California. She can be reached at (844) 4-TALKOV (825568) or

Contact us to schedule your complimentary consultation.

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