Can I Dismiss My Divorce Case and Refile it in Another State After Moving?
Full Question:
Answer:
If a case has never been dismissed in any court before, it may be dismissed after the answer has been filed if the parties involved agree by stipulation to a dismissal. In such a case, it will be deemed a dismissal without prejudice, meaning that it may be filed at a later date. In order to file for divorce in North Carolina, at least one of the parties to the action for divorce must have resided in the State of North Carolina for at least six months immediately prior to the filing of the action for divorce.
Please see the following SC statute:
RULE 41. DISMISSAL OF ACTIONS; NON-SUIT
(a) Voluntary Dismissal: Effect Thereof.
(1) By Plaintiff; By Stipulation. Subject to the
provisions of Rule 23(c), of Rule 66(a), and of any statute,
an action may be dismissed by the plaintiff without order of
court (A) by filing and serving a notice of dismissal at any
time before service by the adverse party of an answer or
motion for summary judgment, whichever first occurs, or (B)
by filing 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
without prejudice, except that a notice of dismissal operates
as an adjudication upon the merits when filed by a plaintiff
who has once dismissed in any court of the United States or
of any state an action based on or including the same claim.
(2) By Order of Court. Except as provided in
paragraph (1) of this subdivision of this rule, an action
shall not be dismissed at the plaintiff's instance save upon
order of the court and upon such terms and conditions as the
court deems proper. If a counterclaim has been pleaded by a
defendant prior to the service upon him of the plaintiff's
motion to dismiss, the action shall not be dismissed against
the defendant's objection unless the counterclaim can remain
pending for independent adjudication by the court. Unless
otherwise specified in the order, a dismissal under this
paragraph is without prejudice.
(b) Involuntary Dismissal: Non-suit; Effect Thereof.
For failure of the plaintiff to prosecute or to comply with
these rules or any order of court, a defendant may move for
dismissal of an action or of any claim against him. After
the plaintiff in an action tried by the court without a jury
has completed the presentation of his evidence, the
defendant, without waiving his right to offer evidence in
the event the motion is not granted, may move for a
dismissal on the ground that upon the facts and the law the
plaintiff has shown no right to relief.
The court as trier of the facts may then determine them and
render judgment against the plaintiff or may decline to
render any judgment until the close of all the evidence. If
the court renders judgment on the merits against the
plaintiff, the court shall make findings as provided in
Rule 52(a). Unless the court in its order for dismissal
otherwise specifies, a dismissal under this subdivision and
any dismissal not provided for in this rule, other than a
dismissal for lack of jurisdiction or for improper venue or
for failure to join a party under Rule 19, operates as an
adjudication upon the merits.
(c) Dismissal of Counterclaim, Cross-Claim or Third Party
Claim.
The provisions of this rule apply to the dismissal of any
counterclaim, cross-claim, or third-party claim. A voluntary
dismissal by the claimant alone pursuant to paragraph (1) of
subdivision (a) of this rule shall be made before a
responsive pleading is served or, if there is none, before
the introduction of evidence at the trial or hearing.
(d) 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 may deem proper and may stay the proceedings in the
action until the plaintiff has complied with the order.
