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.




What To Expect When You’re Divorcing: The Pre-Trial Conference


The Pre-Trial Conference hearing is the window to the light at the end of the tunnel.  The Pre-Trial Conference can be used as the date to finalize settlement and have the Judge enter a final Judgment on your case.  In the event that you do not reach a final settlement at the time of the Pre-Trial Conference, you at least leave the hearing with an idea of the Judge’s thoughts on your case, and a trial date.

After a divorce complaint is filed with the court, a trial cannot be scheduled until you have had a Pre-Trial Conference hearing before the Judge.  Pre-Trial Conferences are not optional and must take place in order to keep your case moving forward.

Prior to the Pre-Trial Conference hearing, we must do the following:

  1. The spouses and their counsel must attend an in-person meeting (often referred to as a “four way meeting”) to discuss what the issues in the case and what if any issues can be resolved by agreement between the spouses. If there is a restraining order between the spouses, this requirement may be waived.
  2. A Pre-Trial Memorandum must be prepared by each of of the spouse’s Attorneys. If a spouse is appearing pro se and does not have an Attorney they are not excused from having to prepare and submit a Pre-Trial Memorandum to the court.  This memorandum describes: the undisputed facts in the case; disputed facts in the case; a procedural history of the case; the contested issues in the case; the status of discovery; the length of time you are requesting for trial; the witnesses you plan on calling; and the evidence you plan on submitting to the Judge.
  3. A current financial statement has to be submitted along with the Pre-Trial Memorandum if any of the issues before the Judge have to do with a financial matter.

The underlying goal of the Pre-Trial hearing is to resolve the case without having to go to trial.  If direct negotiations between the spouses and their attorneys encounter an obstacle, the judge will eliminate the obstacle at the Pre-Trial Conference.




Passive Aggressive Behavior in Children: Hidden Anger in Kids

Kids use passive-aggressive behavior to control parents and avoid responsibility. Here’s how to understand their behavior and respond to it effectively.  Check out this great article from Empowering Parents!

Source: Passive-Aggressive Child Behavior | Empowering Parents


Holiday Wishes from Grossman & Associates, Ltd.

Dear Clients and Friends,

I hope this letter finds you well.  As the holiday season approaches, I like to thank those who have become a part of our extended family and share our news.

The firm has grown this year.  In April 2015, we welcomed Suzana Urukalo to the firm as an associate attorney.  Suzana brings over ten years of divorce and family law experience to enhance our capacity and responsiveness.  Her Canadian perspective and wit bring renewed energy to the office.  In June, 2015 we welcomed Andrea Yavarow to the firm.  Andrea graduated from Merrimack College in 2013 and has been a divorce paralegal ever since.  As the office’s “millennial”, Andrea is our technology troubleshooter and office charmer.   We feel like a team.

By now, most of you know Patryce, our firm’s senior paralegal.  Her attention to detail and “go-getter” attitude makes her an integral part of the firm.  Patryce recently ran for local office in Watertown, and although not elected, she successfully lobbied for improvement of the firefighters’ contract.  She also serves on the Watertown Task Force to remedy the opioid crisis.

In a world where faceless technology reigns supreme, I still believe in the value of face-to-face communication.  We have all been engaged members of the Newton/Needham Chamber of Commerce and ProVisors, a national networking organization, which expand our range of services available to clients.   The firm also hosted a summer mixer for attorneys who work within the N2 Corridor/Wells Avenue area of Newton.  Luckily, the wild turkeys in our parking lot declined to attend.

This year I joined the Board of Hospitality Homes, and the firm hosted a clothing drive to benefit Dress for Success Boston which promotes the economic independence of disadvantaged women by providing professional attire, a network of support, and the career development tools to help women thrive in work and life.  Together with our neighboring firms, we were able to donate fifty items of clothing to this charity.

For me, this year has been filled with family successes.  In May, my daughter, Ariel, graduated with her MBA from Boston University and my son, Micah, graduated from Loyola University in New Orleans.  Ariel now resides in Baltimore where she works for Johns Hopkins Medicine.  Micah toured Israel and U.S. cities as a guitarist with Matisyahu and is now in Los Angeles writing music for a publishing company.   Together we’ve been learning about entertainment law as his music career advances.   In August, my parents celebrated their 60th wedding anniversary at a surprise party thrown by my sister and me.

And finally, this year my various travels took me to Costa Rica, Hungary, Czech Republic, Austria, Germany, Morocco and Spain.   Knowing I have such a wonderful staff allows me to explore.

I so much appreciate the trust you have placed in my firm, and wish you all a year filled with family joy, happiness and fulfillment.                            

Warm Regards,


What to Expect When You’re Divorcing: Motions/Temporary Orders

The first time you enter a courthouse after a complaint for divorce or modification has been filed is often to attend to a Motion for Temporary Orders hearing.  Many people think that after listening to both your attorney and your ex’s attorney make their arguments, the Judge issues a Temporary Order on all the issues brought before them and you and your ex move forward with life and your case is done, unfortunately that is rarely the case.

Motion hearings are very common in both divorce and modification cases, however they do not end the case, their purpose is to put an order in place until the judge makes a final judgment after hearing all evidence from both sides at trial.

That first Temporary Order that the Judge issues in your case can be very instrumental in determining the direction your case will take moving forward.  It provides both sides and their Attorneys with an insight into the Judge’s thoughts on your case and can promote settlement negotiations.

On the flip side, during a Motion for Temporary Orders hearing the Judge has very limited time and information on which to base a well-informed decision.  The Judge does not have the opportunity to review any evidence from either Party or listen to testimony from witnesses prior to making their order, and will only have that opportunity if the Parties do not settle and instead move forward with a trial.


Grossman & Associates, Ltd.

Happy Holidays???

We are in the middle of the holiday season, the most joyous time of year, according to the Hallmark channel, or the most depressing time of year, according to those going through a divorce.

With the pre-existing challenge of having your holidays live up to the hype in the movies, malls and friends’ facebook, now throw in a first Christmas without your spouse or without your children and it all leads to pure misery.  There is a reason the stores don’t carry Christmas Tree ornaments that say, “Our First Christmas apart, Ex-Mr. and Ex-Mrs. 2015”.

Surviving your first Christmas without your spouse or missing your children is made a little easier by remembering the following 3 things:

  • If your children will be with your ex, plan ahead in scheduling phone calls and the day and time that you will be reunited. Having a planned day and time can be the light at the end of the tunnel that will sustain you.
  • Take a short road trip or mini vacation. Being physically away from the place you last celebrated the holidays with your ex or children will help keep the sad memories that creep up on you at a minimum.
  • The holidays are only a small snapshot of the year and don’t have to be given any more weight than you would give a random Tuesday evening.  It is the time and communication that you spend with your loved ones throughout the year that creates the most joy.

Grossman & Associates, Ltd.


5 Free Divorce Tips


  1. Never let your emotions make your financial decisions for you.

Family and Friends are excellent sources of support during the divorce process but they can be just as emotionally involved in your case as you are.  Turn to the professionals you have hired who are not living in your head for support so your anger and frustration doesn’t end up hurting you financially for years to come when the anger and frustration fade.

  1. Familiarize yourself with both you and your spouse’s finances prior to separating.

This is important regardless of whether you or your spouse is contemplating filing for divorce.  You should always have knowledge of the status of your finances including your combined incomes, assets and liabilities.

  1. Make a Future Financial plan for your life post-divorce.

The cost of maintaining two households is much more expensive than one household.  Be prepared both emotionally and financially by creating a future financial budget.  Putting a pen to paper and subtracting the cost of necessities from your new household income will help you determine what you can actually afford in your new life.

  1. Journal important numbers, dates and events.

Our memories are never as dependable as we give them credit for. Journaling using specific details in preparation for your divorce and during the litigation of your case will be the gift that keeps giving for your attorney.

  1. When it comes to children nothing is carved in stone.

Custody, child support, parenting plans are all examples of the issues which will most likely need to be addressed in the future on multiple occasions with your former spouse or as a last resort the court.  Flexibility and accepting change is key in co-parenting and necessary to for your children to continue to thrive.

Grossman & Associates, Ltd.




What to Expect When You’re Divorcing: The Complaint

Complaints for Divorce/Modifications, Motions, Pre-trial Conferences and Trials are words that may all sound the same to any non-attorney going through a divorce, modification or contempt action with a spouse.

In a series over the next few weeks we will explain the following terms:

  • What are Complaints for Divorce, Modification and Contempt?
  • What is a Motion and what can I expect?
  • What is Discovery and what can I expect?
  • What is a Pre-Trial Conference and what can I expect?
  • What is the timeline for these cases?
  • How are divorce, modification and contempt cases settled?
  • What is a Judgment?


The filing of a Complaint with a Court evidences the opening of a new case.  In the Probate and Family Court the Complaint is a form document.  Once the complaint for divorce, complaint for modification or complaint for contempt is served on the other spouse or ex-spouse your case is on the court’s tracking timeline.

A Complaint for Divorce comes in two forms:  a section 1A Complaint is a complaint jointly filed by both spouses along with the Separation Agreement which indicates that you have reached agreement prior to the filing of the Complaint.   A section 1B divorce is a Complaint which is not jointly filed, that is, it is filed by one spouse against the other.   The first activity before the Judge is usually a Motion for Temporary Orders which establishes what we call the “new world order”.   This motion is followed by discovery, a pre-trial conference and ultimately resolution by a judgment reached by either settlement or a trial before the Judge.

A Complaint for Modification is filed after the divorce is over when one spouse wants to change the current divorce judgment.    To succeed in a modification case a person must prove that there has been a substantial and material change of circumstances since the divorce judgment was entered.   For example, one could seek a modification for custody, child support, medical insurance or alimony if circumstances have materially changed.     Modification cases can be as complicated as a divorce case and is sometimes as long and expensive.

A Complaint for Contempt is filed during or after the divorce when one person fails to do what they are obligated to do by the Court.  The obligation can arise by something the Court ordered them to do or which they agreed to do voluntarily, but failed to do.    Unlike the other Complaints, one for Contempt results in a hearing date assigned by the Court, not selected by either side.     If someone proves that the other side is in contempt the judge can award attorneys’ fees to that person, although the amount of attorneys’ fees awarded may not be the amount actually paid or owed the attorney.


Grossman & Associates, Ltd.

Why Separate and Apart Could Lead to Together Forever

Actor James Brolin recently discussed the secret to his 20 year (and still going strong) marriage to Barbra Streisand, “separate bank accounts” .

According to the dismal statistical world, approximately 50% of first marriages, 67% of second marriages and 73% of third marriages end in divorce. Mr. Brolin may be on to something in describing the key to the success of his third marriage.  Financial obligations from previous relationships including: alimony; child support; college tuition and expenses for children from another relationship top the list of contributing factors in the breakdown of 2nd and 3rd marriages.

Prenuptial Agreements are becoming more and more popular especially among people entering into a 2nd or 3rd marriage.  The idea that the signing of a prenuptial agreement kills the trust in a relationship is becoming less common and in fact provides each partner in the relationship with the confidence and security of knowing that the life they will be sharing is not based on the financial means of either party.

Discussing financial expectations and obligations with your partner prior to marriage may not be the romantic foreplay to a romantic date night that you had in mind, but consider it foreplay to a successful marriage.

Grossman & Associates, Ltd.