Motions to Dismiss was last modified: April 7th, 2018 by Howard Iken

motion to dismiss

Motions to Dismiss and Motions for Summary Judgment

motion to dismissIt 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.


What is a Motion?


Jason Ponder on managing witnesses

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.


Motions must comply with certain statewide rules as well as the local rules of the specific circuit court. If a motion is filed with the court but it does not comply with these rules, a court may refuse to hear or act upon the motion. Therefore, it is usually advisable to have an attorney help with preparing and filing motions.


Motions must also be delivered in a timely manner to the opposing party so that he or she has an opportunity to respond. Usually this means making sure that the motion is delivered to the other party several days before a court hearing so that the other party can review the arguments, do legal research (if needed), and file a written response to the motion. If a motion is not timely delivered to the other party, the court can either give the opposing party time to respond or refuse to hear the motion at all.


Motion to Dismiss for Failure to State a Claim


motion to dismiss for failure to state a claim in floridaThe first type of motion that a party may file in a family law case is a motion to dismiss for failure to state a claim. It is filed in response to a petition or claim filed by the opposing party in which that opposing party has requested that the court grant him or her some form of relief. A motion to dismiss for failure to state a claim essentially states that, even if every fact alleged in the opposing party’s petition or claim was true, legally the opposing party would not be entitled to the relief.


Jennifer Schulte - Consultations

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.


Sample Motion to Dismiss Scenario


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 that 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 and Kara have been together in a committed relationship for 3 years;
  •      Ken and Kara have one child in common;
    Melinda Radebaugh
  •      During the relationship, Kara was accustomed to a certain lifestyle and standard of living;
  •      Ken provided most of the support for the couple and the child, with Kara only working sporadically; and
  •      Due to her age and lack of higher education, Kara feels she needs some financial support in order to establish herself.


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.


Motion for Summary Judgment


Jason Ponder - behavior in court

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.


Get to know us: Sierra Johnson, Intake Team

Get to know us: Sierra Johnson, Intake Team

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:


o   That the inheritance came from her mother;

o   That the inheritance has been kept in a separate account;

o   None of the inheritance has been used to pay any marital expenses or debts.


At the hearing on Nellie’s motion, Ned is unable to produce any evidence that disputes any of

Jeana Vogel on Social Media

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 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:


o   The inheritance was deposited in a jointly owned account;

o   The account in which the inheritance was deposited was also the account into which Ned and Nellie’s paychecks, gifts, and other money they earned together;

o   There was a withdrawal from the account used to purchase an SUV.


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 the truly contested issues. A wise and judicious use of these types of motions can end up speeding the proceedings along and saving the parties time and money.


Ayo & Iken Attorneys in Action

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 law 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.


We hired Jeana to handle a case for us in Florida because we reside in the state of Arizona and she was great! We actually hired her several times to handle a family matter for us, and she never failed, she fought hard for us and we are grateful to have found an honest attorney that we could depend on to work for us and do the work that we asked of her without hesitation. Do NOT go to a second rate attorney for any legal needs because you will find out as we recently have, that you get what you pay for!! We would definitely hire her for any future problems arising out of the state of Florida!
Arizona   – Avvo

Free Consultation is limited to individuals considering hiring an attorney. Not all situations qualify. Fee charged for appellate case evaluations.

Or email message to:

I hired Jason to represent me in a custody situation. He was more than willing to listen to my circumstances, and offer the best legal recourse possible. He returned my phone calls, kept me informed, and guided me very well throughout the process. The judge ruled in our favor, and I’m sure it was due to Jason’s knowledge of family law and the strategy in which executed. I would recommend Jason to anyone who is looking for a quality, thorough , knowledgable attorney. I was very satisfied with his performance.

Anonymous – Avvo

Our Attorneys Are Ready to Fight for You!

Over the past 14 years Ayo & Iken has helped over 5,000 people just like you

Our Attorneys Are Ready to Fight for You!

Over the past 14 years Ayo & Iken has helped over 5,000 people just like you