It is true that many divorce issues depend on the facts of a particular case. Whether child support is appropriate and in what amount; what sort of spousal support ought to be ordered; and what property should be divided between the spouses; are all issues that require a careful examination of the facts. But it is a misconception to believe that every issue needs to be litigated in a trial to the court.
There are several methods available to parties to resolve issues in a divorce case without the need for lengthy hearings. A motion to dismiss for failure to state a claim can be used to handle a situation in which the person making the claim or argument is not entitled to any legal relief; a motion for summary judgment can be used where there is a valid claim but the law is clear how the claim is to be decided. When used properly, these motions can reduce the number of issues that need to be decided by a court.
Before discussing what types of motions are available to parties in a divorce case, it is helpful to discuss what a “motion” is and how it differs from an “order.” Except in certain limited circumstances, a court cannot take action on its own initiative. Instead, the court must wait until a party has requested the court to do something; then the court may respond as it chooses within the boundaries of the law. A party files a motion as a means of requesting the court to take some specific action. In other words, a “motion” is a party’s request for the court to “move” in some way.
In deciding whether to grant a motion to dismiss for failure to state a claim, the court considers only the information contained within “the four corners” of the opposing party’s petition or claim. That is, the court examines the factual allegations contained in the opposing party’s petition and (for purposes of deciding whether to dismiss the petition) considers all of those factual allegations true. In addition, the court will make and accept reasonable inferences drawn from those allegations that support the petition. Essentially, the court will look at the petition and give the party that filed that motion every benefit of the doubt. If there is still no legally recognized claim under which the court can grant relief, then the motion to dismiss will be granted.
If a motion to dismiss is granted, the court may dismiss the case without prejudice. This gives the other party the opportunity to correct the errors or mistakes and refile the case. If there has been egregious conduct and the court dismisses the case, the case may be dismissed with prejudice. This would prohibit the other party from trying to refile the case again.
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For instance, suppose that Ken and Kara both live in Florida and have a child in common. For a couple of years, they have lived in a committed relationship with one another. They have utilized Ken’s house which he owns individually as their residence. However, the couple never did marry nor did they express any desire to be married. Eventually, the couple drifts apart and begins to live separately. Kara files a petition in her local circuit court, seeking a division of property and alimony. In support of her petition, Kara swears to the following facts in her petition:
Ken would respond by filing a motion to dismiss for failure to state a claim. Even if the court were to believe every one of Kara’s allegations, she is not entitled to the relief she is asking for – alimony and property division. These remedies are available to spouses who were married for a certain length of time. Since Ken and Kara never married, however, the court cannot order Ken to pay alimony to Kara, no matter how much she may need the extra income or how much property the two of them accumulated. In this case, a motion to dismiss is appropriate.
A motion for summary judgment is another tool with which parties can resolve certain disputes quickly. Like a motion to dismiss, it is filed in response to a petition or claim filed by an opposing party. And, also like a motion to dismiss, a court will make inferences in favor of the opposing party. However, that is where the similarities end. Whereas a motion to dismiss is granted where there is no legal claim to be granted, a motion for summary judgment is granted where there is a legally valid claim, there is no dispute as to the facts, and it is clear that one party is entitled to relief.
A motion for summary judgment can be filed either 20 days after the case is initially filed or after the other party serves a motion for summary judgment. The motion must set out the legal reasons why the motion should be granted. In addition, the motion must identify evidence – whether in the form of affidavits, answers to interrogatories, or other admissible evidence – that supports the motion. At a hearing on a motion for summary judgment, the court will decide whether there are any “issues of material fact” and whether the law requires a certain result. A motion for summary judgment can be used to solve either some issues or the entire case. If a motion for summary judgment as to a single issue is successful, that issue will be decided and the case will proceed on the remaining issues. If the motion for summary judgment resolves all of the issues, then the case will end.
A motion for summary judgment will not be granted if there are issues of “material fact.” A “material fact” is one that is essential to the resolution of a dispute. For instance, in a child support case, the amount of money made by the individual spouses would be a material fact. In an alimony case, the length of the marriage would be a material fact. In order for a motion for summary judgment to be successful, there cannot be any material facts that are in dispute between the parties.
Consider two examples:
Ned and Nellie are in the midst of a divorce proceeding. Before getting married, Nellie had inherited $100,000 from her mother. Nellie has always kept the money in a separate account and has not commingled the funds. Ned has filed a motion to have the inheritance and all the interest generated from the inheritance declared to be marital property. Nellie files a motion for summary judgment. With her motion, she attaches evidence and documents showing:
At the hearing on Nellie’s motion, Ned is unable to produce any evidence that disputes any of Nellie’s evidence and documentation; instead, he shows that the parties were married for over 17 years. In this case, there is no dispute as to the material facts, and Nellie’s inheritance will be found to be separate, non-marital property. The length of the marriage is immaterial to whether or not an inheritance is a marital or non-marital property.
Now suppose Nellie’s $100,000 came from her mother, but Nellie deposited the inheritance into an account to which she and Ned had access. Not only this, but the couple used a portion of the inheritance to purchase an SUV when they had children. Nellie files a motion for summary judgment, claiming that the money had come from her mother. Ned responds with documents showing:
Here in this case, the court will likely find that there is a “material fact” to be decided because it is not precisely clear whether the $100,000 should be considered non-marital property. In other words, there is some evidence suggesting that the inheritance should be treated as non-marital and separate property, but there is other evidence suggesting commingling has occurred and some, if not all, of the inheritance, might be properly considered marital property. Nellie’s motion for summary judgment on this issue will likely fail.
Motions to dismiss and motions for summary judgment can help the court and parties quickly resolve certain issues of a Florida divorce or child custody dispute on which the parties agree. This leaves the parties and court free to focus on truly contested issues. Wise and judicious use of these types of motions can end up speeding the proceedings along and saving the parties time and money.
Although motions to dismiss and motions for summary judgment may seem like a quick way to resolve some disputes or issues, it takes a person who is familiar with local and state rules and laws in order to use these motions effectively. If a motion does not comply with rules that dictate how the motion is to look, when it is to be filed, or what must accompany the motion, the motion may be rejected by the court. Not only this but there are certain defenses that are waived and unable to be brought up again if they are not brought up at the appropriate time in the case. Divorcing spouses are best advised to consult with an experienced family law attorney who can evaluate the facts of their individual cases and advise them on what motions are appropriate to file under the circumstances.
If a party has received a motion to dismiss or a motion for summary judgment, it is important that that person consult with an attorney right away. If unanswered (or answered improperly) a claim can be decided against the person, dismissed and require refiling, or dismissed with no possibility of refiling the claim.
