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.