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Divorce Toolbox: Motions 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
  • The misnomer of a party
  • 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.

Hindell has successfully negotiated, litigated and arbitrated hundreds of cases on behalf of her clients. Several of her successes have been published in Massachusetts Lawyer's Weekly and she has been featured in the Needham Tab, Boston Business Journal and the Boston Globe.
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