A Motion to Dismiss and What it Means For Your Divorce

A motion to dismiss means one party to a divorce applies to the court to stop the divorce application from proceeding. It's not all that common and the response from the judge varies.

If you are involved in a divorce and then you and your spouse decide you don't want to go through with the divorce, then almost certainly a judge with agree to a motion to dismiss.

But if one partner is in dispute over some issue arising from the separation e.g. child support, the spouse paying the child support may seek to stall proceedings in order to seek agreement on a change in the financial arrangements. The judge would look at the circumstances and make a decision. In some cases the judge would not agree to this motion to dismiss and would have the divorce application proceed.

Now divorce is a state issue and each state is unique. Any person seeking a divorce or involved in a divorce must consult the legislation which is relevant. The legislation is the one drawn up by the state in which the divorce is to be heard. Know the law. If you're using a lawyer, he or she should know the situation but if you are acting for yourself, the relevant legislation is available for perusal online.

Now there are two cooling off periods in most divorce situations. The first comes when the divorce application is made. The court usually allows thirty days for the other spouse to respond. Their response may alter the date of the hearing if the judge feels the respondent needs more time to prepare.

The second cooling off period comes once the application has been agreed to. There is usually another thirty days before the divorce comes into law. In both of these cooling off periods both spouses have the opportunity to file a motion to dismiss.

You might think it would be crazy that someone applies for a divorce, has it granted and then in the time before it becomes law, files a motion to dismiss. It has happened. It might be that the love was rekindled and the couple decide to give their marriage another chance.

It might be that the respondent lives in another state and wants the divorce heard in their home state. Maybe the legislation in that state is considered more favorable or less harsh. Who knows? But that can be the reason for the filing of a motion to dismiss.

Remember though that filing a motion to dismiss does not mean anything unless the judge agrees. The motion in itself is a request which can be denied or agreed to by the judge. He or she decides the outcome in every application.

If you are representing yourself in your divorce, you would be wise to consult a lawyer before filing for a motion to dismiss. The lawyer may well know the law in the State in question and could even know the previous record of the judge handling the case. Take sound advice.

Berna Abonita is associated with http://www.divorceguide.com, a website offering free advice on divorce law and motion to dismiss.

Co-Parenting During-After a Divorce

Parents going through divorce have a choice (in most circumstances):

1) Accept the marriage is over and attempt to co-parent the children; or

2) Maintain an adversary relationship with the other parent that spills over into parenting.

Children deserve the love, affection and respect of both parents. If the children are the true priority, in a perfect world, parents would be able to put their own anger aside to work together with the other parent to raise their children. After all, the parents will have a life long relationship of attending extracurricular activities, graduations, children's weddings and sharing grandchildren. Clearly, the children would be happier if these events didn't have the stress of the divorce hostility looming over them.

Unfortunately, a lot of divorced parents believe the other parent is completely unreasonable and they are unable to work anything out with them (hence the divorce). How do divorced parents co-parent in these situations?

A few tips:

1) Do not approach discussions with the other parent as "I am right...you are wrong." Try to be respectful and open-minded in your discussions.

2) Do not make negative comments about the other parent to the children (no matter how outrageous you believe the other parent is behaving). If you believe there is abuse or neglect by the other parent, consult immediately with a therapist and an attorney. If there is an emergency situation, the local child protective services and law enforcement should be contacted immediately.

3) Do not discuss the litigation with the children or allow them to review court documents. These are adult issues. You should approach the child custody issues as an opportunity to try to reach an agreement with the other parent. All attempts should be made to be a "united parenting force" for your children, if appropriate under the circumstances.

4) Do not discuss child support with the children.

5) Do not pass messages for the other parent through the children.

6) Do not undermine the other parent's authority. If the other parent imposes discipline (such as grounding or a time out), support the decision. Of course, this does not mean to support child abuse. But, assuming we have a non-abusive method of discipline, consult with the other parent before questioning the decision in the presence of the children.

There are many resources for co-parenting classes and therapy to help parents. After the divorce is final, the parents have the opportunity to focus on the parenting without the problems of the marriage. Clearly, the children would benefit. Children develop and grow very fast. You only have one opportunity to raise them. Don't waste it because you are angry over the divorce.

Elisabeth Camaur, Attorney At Law
Certified Family Law Specialist by the California State Bar Board of Legal Specialization
Camaur Crampton Family Law
19200 Von Karman Avenue, 6th Floor
Irvine, CA 92612
(949)622-5530

http://www.camaurcrampton.com

Navigating Rough Waters - Divorce Process and Strategy - From Filing to Trial!

This is part two of a two part series on the Rhode Island divorce process including divorce strategy. Part one, pertians to the initial stages of a divorce from finding a Rhode Island Attorney to filing for divorce. Please see below for a link to part one of this series.

This article discusses divorce strategy and the divorce process after filing for divorce. This article is for informational purposes only and does not constitute legal advice. It is a very bad idea for a person to represent themselves in a Rhode Island divorce without a lawyer.

Nominal or Contested Track

When a Rhode Island divorce is filed, the case is put onto one of two tracks, the contested track or the nominal track. The Plaintiff in their initial divorce filing designates the track they desire. The vast majority of divorces filed in Rhode Island are placed on the nominal divorce track. A designation on the "nominal track" does not necessarily mean that the divorce will be uncontested. It usually means that the party who filed believes that the case can be settled relatively quickly or wants the divorce to be settled relatively quickly.

Answer to Divorce Complaint

The defendant must file an answer to the divorce within 20 days of service and absolutely no later than the nominal court date or any motion date. If the Defendant does not answer the case he is subject to being defaulted. A default is when the defendant does not answer the case on a timely basis and the Plaintiff will usually get all of the relief that he or she requests.

Nominal divorce

If the case is put on the nominal track then the clerk will automatically set a nominal divorce hearing upon the Plaintiff filing for divorce. This hearing will typically be scheduled from 65-70 days after the Plaintiff files. In the event that the divorce is not settled by the nominal divorce date then the case will automatically be changed to the contested track.

If the matter is not settled by the nominal court date and both parties want to try to resolve the remaining issues in court and believe it is possible to resolve the remaining issues, then the parties can attempt to settle the case in the hallway or conference rooms in the courthouse and put the case through as a nominal uncontested divorce on that date.

If the defendant has not filed an answer, it is dangerous for the defendant to not appear in court at the nominal court date based on representations made by the other party.

There have been many occasions when a souse has assured the other party that it is not necessary to appear in court and not necessary to file an answer and the defendant is defaulted and the other spouse gets 100 percent of the assets of the marriage.

On the date of the nominal divorce hearing, at the call of the calendar, the case will be either ready nominal or the parties will ask the judge to hold the case so they can try to resolve the remaining issues. If the parties cannot resolve the remaining issues they will inform the Court clerk or the judge that the case cannot be settled and the case track will be changed to the contested divorce track. If the case track is changed there will be no hearing that date and the court will inform the parties of the next pretrial conference date.

If the parties ask the clerk to hold the matter they will usually get a substantial amount of time to negotiate the remaining issues in the hallway. Upon settling all the remaining family law issues which may include issues of property division, child support, child custody, child visitation, alimony, contempt issues, restraining order issues etc the clerk should be informed that the case is now ready nominal. At that point the clerk and judge will put you back on the list of cases ready for the nominal hearing.

Pursuant to Rhode Island General Law a divorce cannot be resolved without a nominal divorce hearing. At the nominal divorce hearing certain testimony must be elicited in order for the divorce to be granted. In some circumstances, it is necessary to have witnesses to briefly testify. If you don't have the required witness your case could be delayed or even dismissed and you may waste your time attending court.

Most Rhode Island divorce and family law attorneys have done these nominal hearing hundreds of times. It is a very bad idea for a person to represent himself or herself in a divorce! As the old adage goes a person who represents themselves has a fool for a lawyer. Since everything you have worked so hard for is on the line it is foolish to go through the Rhode Island divorce process without Rhode Island divorce and family law lawyer.

If the case was originally placed on the contested track calendar, then the clerk did not schedule any automatic nominal court date. If the case later becomes settled then the parties can ask the clerk for permission to come on a particular date for the nominal divorce hearing. Otherwise the parties can wait for a motion date or the pretrial date to do the nominal divorce hearing.

Discovery in RI Divorce

After the divorce is filed the Plaintiff and or the defendant can at their option proceed with "discovery". Discovery in general is the process by which the parties get information or admissions from the other party. Discovery is most important and perhaps crucial in a case when a spouse is unaware of the nature and extent of the marital property and estate. Discovery can be also useful to obtain documents or other tangible evidence that is needed for settlement or trial.

The Rhode Island discovery process also can be used to obtain admissions of certain allegations. While it is unethical and perhaps immoral for a person to lie about cheating or an affair to their spouse it is not illegal or criminal for a person to lie to their spouse about an affair. If a person lies under oath either in testimony or in a written document under oath they may be committing the crime of perjury.

Also if a judge believes a party is lying under oath there could be stiff sanctions and penalties including a referral to the attorney general for prosecution. However, in reality, most incidents of lying in family court are not prosecuted as crimes. Many attorneys use request for admissions or interrogatories to force the other party to state under oath whether or not they had an affair and the extent and details concerning the extra-marital affair / cheating/ infidelity.

There are several discover mechanisms that can be used: interrogatories, request for production of documents, request for admissions, depositions, subpoena duces tecum, subpoenas etc.

Interrogatories

Interrogatories are written questions that a party may sends to the other party. Each side is allowed up to 32 interrogatories. Interrogatories can be helpful in obtaining lists of assets, allegations that will be made by your spouse or other useful information. This information requested can run the gamut from child support to marital infidelity and may include: child custody issues, child visitation, drug and alcohol abuse, gambling addiction, alimony, health insurance issues, real estate issues, estate planning and trust issues, personal injury claims, domestic violence / restraining orders, criminal history, valuation of assets, mental health history and any Rhode Island family law issues.

Interragaoties must be answered in the time frame set by the Rhode island domestic Court Rules. Interrogatories are usually partially written and also reviewed by your husband or wifes' lawyer. Therefore, while a valuable tool there are some limitations to the usefulness of the information received.

Request for Admissions

Requests for admissions when used appropriately can be a powerful discovery tool in a RI divorce. Request for admissions are written requests usually prepared by the attorney, which the other party must reply within a short period of time. If the party does not reply to the request for admissions within the applicable time the allegation will be deemed admitted.

Depositions

A Deposition is when a party usually through their lawyer can ask their spouse questions under oath in front of a court reporter. In Rhode Island family Court, a party must obtain leave of court / permission from the court in order to take a deposition. Motions to take deposition of the other party are almost always granted by Family Court Judges. Depositions are powerful yet expensive discovery tools. A deposition usually is effective because the attorney can ask the other party questions face to face. The attorney can ask follow up questions and can ask questions in different ways. This is particularly effective if a party is being evasive or less than forthcoming. There is very little the other attorney can do to help their clients answer the questions during a deposition.

Depositions are very expensive because the Court reporters transcript could cost several hundred dollars. Also the attorney doing the deposition will need perhaps several hours to prepare for the deposition. Also both attorneys will need to attend the deposition, which could take up to several hours. Depositions are usually better ways to get information about sensitive topics then interrogatories.

Request for Production of Documents

Request for production of documents is a list of requested documents that must be responded to within the applicable time period. I find this discovery tool to be particularly successful in obtaining documents and records concerning: pension plan documents, 401k records, retirement accounts, employment documents, wage documents, health insurance records, stock accounts, estate planning documents, bank statements, real estate documents etc.

Subpoena

A Subpoena Duces Tecum can be very effective in obtaining documents from third parties such as bank records, stock records, employment and wage records and other documents.

The third part of this three part series which is coming soon addresses preparing for a Divorce trial to the actual divorce trial to the entry of Final Judgment

David Slepkow is a Rhode Island Divorce and Family law lawyer / attorney concentrating in divorce, family law, child support, custody, visitation, adoption and relocation. David has been practicing for over 9 years and is licensed in Rhode Island, Massachusetts and Federal Court.

David also handles Rhode Island personal injury, slip and fall and automobile accidents as well as litigation and landlord tenant matters.

David always offers free initial consultations and accepts all major credit cards. Please goto http://www.slepkowlaw.com for more legal information or to contact David Slepkow. You can also call attorney David Slepkow at 401-437-1100.

For a list of Rhode Island law articles written by Rhode Island divorce lawyer, please visit: http://www.slepkowlaw.com/ri-law.htm

Emotional Abuse During Separation and Divorce

The end of any relationship is rarely a happy one, and when it comes to ending a marriage that has been scarred with infidelity or abuse, the ensuing separation and divorce can be as bitter as the marriage itself. Couples get embroiled in vicious battles over their children and material assets, and all involved have to go through severe emotional turmoil.

There is no denying the emotional pain that comes from having to let go of a relationship that was meant to last for a lifetime. Sometimes the effects of separation can haunt one or both the partners for a lifetime. At times one of the battling parties may consciously or unconsciously launch an emotional warfare, by telling the partner that he or she was a lousy parent, completely unsatisfactory in bed, or flaunt a new partner even before the divorce proceedings have been completed.

Psychologists advise that when a person has to face this kind of behavior from his or her estranged partner, the best form of response is to not engage in it at all. Other forms of mental or psychological abuse common during this period are coming up with false allegations of abuse, both physical and mental, and trying to poison the children's minds against the other parent. Emotional terrorism is quite common at this stage, especially if one partner had trusted the other with closely guarded secrets.

The deadliest form of abuse during separation and divorce is when violence enters the picture. The authorities need to be informed immediately if one partner starts showing his or her violent streak at this stage, and obtaining a restraining order becomes a necessity.

About Author:
Kum Martin is an online leading expert in legal industry. He also offers top quality articles like:
Advantages to Annulment, Unmarried Fathers Rights

Divorce, Child Custody, and Family Law - What Not to Do in Your Family Law Case

At the end of a divorce or child custody case, there aren't any "winners" or "losers" in the traditional sense. But often one person walks away feeling as though they attained the better outcome. Many times this outcome is the product of some mistake that the other party made.

As a family law attorney, I've seen some hostile cases and I've seen people do some cruel things. Sometimes these actions are physically injurious but, more often than not, they are mentally damaging. In the end, however, they almost always come back to haunt that person. Consequently, if you are involved in a divorce case or a child custody case, don't do any of the following if you want to attain your desired result:

1) Denigrate or abuse your spouse.

Nothing makes someone look worse in a family law case than someone who is cruel to their spouse. No, it doesn't necessarily mean that you are "at fault" under the law, at least not with respect to grounds for divorce. But if there is one thing to take out of this article, it is that the law isn't the only factor in the outcome of your case. The State has an interest in protecting marriage as a promoter of family values, so if there is someone to blame for the breakdown of the marriage, this is a sure sign of who that person is.

2) Involve the children.

Who is most affected by your divorce case or your child custody case? That's right - your children. Not you and not your spouse. Keep them insulated from your litigation so as to minimize the effects of their life being turned upside down. Do NOT use them as a messenger. Do NOT share intimate details of the other parent's behavior. Do NOT let them read legal pleadings or letters from attorneys. DO not move your children far away from the other parent.

3) Be unreasonable in custody and visitation.

Unless your spouse actually causes harm to your children, you need to accept the fact that your children need both parents in their lives. There are things that a mother can provide, which a father can't provide. There are things that a father can provide, which a mother can't provide. Being unreasonable in custody and visitation or worse, denying visitation altogether, only makes you look like a bad parent.

4) Fail to provide support.

Support in this context means child support and alimony. Though mutually exclusive, the point is the same. Courts don't like it when you refuse to pay reasonable amounts of support. Child support will be awarded in nearly all cases. Courts don't like it when the non-custodial refuses to pay. Hint: they take it as a sign that you don't care about your children. Likewise, if your case is one in which alimony is warranted, don't refuse to provide for your spouse until the court orders you to do so.

5) Hide assets.

Some people get away with hiding assets. But a good divorce attorney will find them. When they do, they will let everyone know about it. Then you're in trouble not only because you now have more assets in the pot, but you also lied about what you have.

6) Let emotion guide your actions.

This is the "catch-all" provision. Put simply: don't be a jerk. While most family law cases are resolved outside the courtroom, there are many that end up in trial. Remember that the Judge who is ultimately deciding your case is a person too.

This is not legal advice. It is merely information. Every situation is different and you should contact an attorney licensed in your state to discuss your specific needs. I am not your attorney. You are not my client. If you need a family law attorney in Maryland or DC, contact a Maryland family attorney or DC divorce lawyer without delay.

How Do I Prepare For a Divorce?

The divorce process can be a long, costly and very emotional process. The first thing your probably wondering is how much is this going to cost and how long is it going to take. Unfortunately there is no straight answer to either one. Some divorces take weeks others take years. If you have children you might be in and out of court until the youngest child turns 18. Divorce can also be cheap or costly, running as little as $2,000 and for a battle over property and child custody you can expect to spend closer to $10,000 to $50,000.

I Am A Victim Of A Long And Costly Battle

Unfortunately its true and if I could have I would have given up the house, the cars, the alimony and child support just to get my ex-husband off my back, but he was a controlling narcissist and couldn't deal with the fact that we were in a failing marriage. This does not have to be you. You can learn from my win and loses to ensure your divorce goes as smooth as possible and hopefully in your favor.

Prepare For The Worst, Plan For The Best

Its an old saying but it holds so much truth. Your divorce might go smooth at first, you agree on custody and who gets what, but then the lawyers come into play and it all goes out the window. This doesn't always happen, but it happened to me. How Do I Prepare For A Divorce you ask, plan for the best but be sure your ready for the worst and done be caught by surprise.

Financial Planning

Divorce cost money whether your divorce goes smooth or its an all out battle. All out battles are more costly of course, but you need to prepare financially either way. If you are a house mom like I was, you may need to start putting money aside to hire a lawyer to represent you. How Do I Prepare For A Divorce financially? Start cutting expenses so you can save more and maybe even work extra hours to make some extra cash. Do not be afraid to as friends, family and your parents for a little financial help. If you are in an emotionally or physically abusive relationship, your better of owing money for a few years than to ensure the abuse of your marriage.

Protecting Yourself

Protect yourself and ensure your name is on anything you want your fair share of. That includes the house, the cars, insurance, timeshares, and anything else that holds value. Even if your name is not on them, make sure you have records of these items, including when they were purchased, how much they are worth and how much you owe.

Get The Best Lawyer You Can Afford

The fate of your life, your property and your children are ultimately at the mercy of how good your lawyer is. How Do I Prepare For A Divorce legally? Make sure you get the best lawyer that you can afford. Interview many of them and make sure they understand you, your case, your situation and most of make sure they will fight for you. Most lawyers will only represent you, but to get them to put up a fight is another story. Lawyers are trained to settle and if you do not want to settle, you have be sure you hired an aggressive lawyer.

Get Educated, Get Help, Get Advice

Just because you have a lawyer does not mean you should stop reading and learning. Remember most lawyers just want to represent you and settle your divorce and child custody. Putting up a fight for your children and your property is another story, especially if they know you are on limited funds. How Do I Prepare For A Divorce mentally? There are some great reference guides out there on divorce strategies and how to win child custody that every person in a divorce should read up on to ensure your best fighting chance.

First thing first is to get a free consultation with an attorney familiar with divorce and child custody in your court district.

Visit My Divorce Help

Get a free no cost obligation of your legal rights to divorce and custody. The free consultation will let you know yours and his legal rights to divorce and child custody. They will also let you know how to protect yourself and how much its going to cost. Just remember the first one to act will get the upper hand. Do not wait for him to get a lawyer first.

Secondly I highly recommend an online reference guide called Divorce Strategies and Tactics For Women. Its only $27 and its going to answer a lot of questions that you have about divorce.

Last but absolutely not least, if you have a child and you think there is even a slight chance of a custody battle get this guide on How to Win Child Custody. Child custody is a completely separate issue and battle from divorce and usually 90% of the expenses and heart ache. Use these strategies to get the upper hand from day one. I will tell you from experience, women do not always get primary custody, because the courts these days want the parents to have equal parenting. Do not wait until things start to go wrong to get this information that you should be doing even before you start the divorce process.

You can get both of these by visiting My Divorce Guides

I wish you all the best of luck

~ Janice Rubin

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http//:www.sjblawoffice.com A Roadmap to Divorce The Divorce Process in California The summons and the petition for dissolution of marriage set the tone for the rest of the divorce. There are less confrontational options than to have these documents delivered to your spouse by a sheriff or process-server. − Victorville family law attorney Sharon J Brunner Step 1. Gather Information Once you choose a lawyer, the divorce process in California begins with gathering information such as names of the parties, birthdates and addresses, along with detailed financial information. To obtain full and accurate information, your lawyer will need to scrutinize tax returns and pay stubs, bank statements and retirement plan accounts such as 401(k) plans. If there is an allegation that a spouse is unemployed or underemployed voluntarily, your lawyer will also review earnings history. If your spouse is self-employed, business income and expenses will need to be reviewed. For liabilities, all credit card statements, loans and other debts will need to be scrutinized and evaluated. This step will create a preliminary balance sheet to have an understanding of the marital estate as a whole. Discovery may be necessary to force the other side to produce information and documents. Step 2. Initiate the Divorce To initiate a divorce, two documents will be prepared: Summons. This is a formal notification of legal action. It provides a time for the other party to respond and a basic restraining order ...



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