Divorce Toolbox: Motion to Dismiss

Although not a common occurrence, a Motion to Dismiss is an available tool to a pending Complaint for Contempt or Modification.  If the motion is allowed the pending complaint ends by dismissal.  The motion usually involves an additional hearing, a hold in litigating the underlying complaint, and additional legal fees.

A Motion to Dismiss may be asserted as a defense for any of the following reasons under Rule 12 (b):

  • Lack of Jurisdiction over the subject matter;
  • Lack of jurisdiction over the person;
  • Improper venue;
  • Insufficiency of process;
  • Insufficiency of service of process;
  • Failure to state a claim upon which relief can be granted;
  • Failure to join a party under Rule 19;
  • Misnomer of a party; and
  • Pendency of a prior action in a court of the Commonwealth.

 

Although all of these nine (9) defenses are theoretically available, number six (6) – Failure to state a claim upon which relief can be granted – is most commonly used.  This defense forces the court to evaluate the facts claimed in the Plaintiff’s complaint and determine whether the facts, if true, would lead to the relief the Plaintiff is seeking.  If so, then the Motion to Dismiss must be denied.  If not, the motion is allowed and the case is over.   Filing a Motion to Dismiss is an appropriate tool to throw out a frivolous case.

There are certain cases where a Motion to Dismiss will certainly fail.   For instance, on a defense of laches (delay in bringing an action) for unpaid child support and/or alimony.  In other words, one can file a Complaint to collect unpaid child support and/or alimony even though a long period of time has passed.  Grossman & Associates, Ltd. recently defeated a Motion to Dismiss brought by an ex-husband/father who unilaterally terminated his alimony/child support obligation in 1998.  The case will go on to determine how much he still owes.

 

 

 

What to Expect When You’re Divorcing: Trial

Trial is the moment everyone has been waiting for…the end of the divorce.   After years of planning, negotiating and conflict, this is the day that you have been preparing for since the idea of the divorce began.

Trial preparation takes organization, strategy and legal fees.  Depending on the extent of the open issues, trial preparation usually starts weeks before your first day of trial.  At the trial each side presents to the Judge the evidence that you have been gathering in support of your argument, including testimony from witnesses and identification of documents from both sides which are admitted into evidence.  Both before and during the trial the two attorneys can “stipulate” to the admission of documents which they agree upon.  Stipulations expedite the trial process but are not guaranteed.

At trial the attorneys give opening statements, witnesses are called by the Plaintiff first, then the Defendant. Each witness provides “direct examination” and suffers through “cross-examination.”   Witnesses are used as the vehicle to introduce and explain documents relevant to the case.  After all witnesses are called the attorneys give closing arguments summarizing their positions.   After hearing, and examination of the evidence, the Judge will enter a written decision, called a Judgment.   It can take months to get the judge’s written decision.  Your patience during this time will be tested.

Always remember that the only time it is too late to settle is when the Judge has issued a written   decision.  If there is an agreement on ALL of the issues at any time, including after trial has begun, the judge’s decision can be avoided, and YOUR written agreement of the issues will prevail instead as a final judgment and resolution of your divorce.