Rule 46.Dismissal
Part V. Default Decree and Consent Decree, Judgment, or Order; Dismissal · Last amended January 1, 2019 · Last verified September 4, 2026
Full Text of Rule 46
Rule History
Added Aug. 30, 2018, effective Jan. 1, 2019.
Plain-English Summary
Rule 46 handles the end of a case that does not end in a decree.
Voluntary dismissal
A petitioner -- or a Rule 91 applicant dismissing a post-decree petition -- may dismiss by notice before the opposing party responds or, where no response is required, before evidence is introduced at a hearing. Once a response has been filed, dismissal requires a motion on such terms as the court deems proper, including resolving the responding party's claims. Dismissal may also come by court order on a stipulation signed by all parties who have appeared. Unless the order says otherwise, a voluntary dismissal is without prejudice.
Involuntary dismissal
A responding party may move to dismiss if the filing party fails to take the steps these rules require. The court may also dismiss on its own for failure to move a case forward, after giving all parties notice and an opportunity to object or to start moving.
The 120-day and 60-day sequence
If no motion to set has been filed within 120 days after a petition is filed and served, and the court has not set the matter, the court may issue a notice that the matter will be dismissed without further notice in not less than 60 days unless a motion to set or a request for hearing or conference is filed in that time. If nothing is filed, the court may dismiss. The deadlines may be extended for good cause.
There is a hard carve-out: the court may not dismiss while a motion for judgment on the pleadings, a motion for summary judgment, or a motion related to genetic testing in a paternity matter is pending.
What a dismissal reaches
Section (d) is the provision worth reading twice. An order dismissing a case dismisses all pending, unresolved petitions and issues -- but it does not dismiss, vacate or set aside any final decree, judgment or order previously entered in the case, unless it says so. Dismissing a post-decree fight does not disturb the decree.
Finally, section (e) allows the notice-and-dismissal work for lack of service and failure to prosecute to be performed by court administrators or an appropriate electronic process under the court's supervision.
Frequently Asked Questions
Can I dismiss my own petition?
Rule 46(a)(1) allows dismissal by notice before the opposing party files a response, or -- if no response is required -- before evidence is introduced at a hearing or trial. After a response is filed it takes a motion, or a court order based on a stipulation signed by all parties who have appeared.
Is a dismissal with or without prejudice?
Unless the order or notice states otherwise, Rule 46(a)(2) and Rule 46(b)(3) make dismissals without prejudice.
What happens if nothing is filed for months?
Rule 46(b)(2)(B) allows the court to issue a notice of dismissal if no motion to set has been filed within 120 days after the petition was filed and served and the court has not set the matter. If no motion or request is filed within 60 days after that notice, the court may dismiss.
Can the court dismiss while a motion is pending?
Not in three situations. Rule 46(b)(2)(B) bars dismissal where there is a pending motion for judgment on the pleadings, a pending motion for summary judgment, or a motion related to genetic testing in a paternity matter.
Does dismissing a post-decree petition undo my decree?
No. Rule 46(d) says an order dismissing a case dismisses all pending unresolved petitions and issues, but does not dismiss, vacate or set aside any final decree, judgment or order previously entered unless it specifies otherwise.
Who issues these dismissal notices?
Rule 46(e) allows the court's authority to issue notices and dismiss cases for lack of service and failure to take required steps to be performed by court administrators or by an appropriate electronic process under the court's supervision.