How to Dismiss Alimony Claims for Failure to Prosecute

by Rob Jennings J.D.
Family court judges can dismiss alimony claims that the claimant fails to pursue in a timely manner.

Family court judges can dismiss alimony claims that the claimant fails to pursue in a timely manner.

Stockbyte/Stockbyte/Getty Images

Alimony claims can arise as part of a divorce or separation complaint, but they can also present in the form of a post-judgment motion to modify. However your ex's claim arose procedurally, the situation may develop where your ex fails to prosecute her claim -- that is, she fails to take the steps necessary to move her case forward. While this can leave you in legal limbo, you can sometimes turn this inaction to your advantage.

Ready to start your LLC? Start an LLC Online Now

What It Is

Failure to prosecute can appear in a variety of forms. Your ex could skip court-ordered mediation, she could fail to complete or serve discovery or she could fail to attend important court dates, such as attending pretrial conferences or in scheduling hearings. Alternatively, after making her alimony claim, she could simply do nothing. In family law cases, it isn't uncommon for an attorney or litigant to file a claim and then do absolutely nothing to pursue it. As time drags on with no resolution, you can find yourself losing your witnesses, losing your evidence and losing the money you've set aside to pay your attorney.

Motions to Dismiss

If you and your attorney believe you have grounds to effect an involuntary dismissal of your ex's alimony claim for failure to prosecute, you will need to file and serve a motion, in accordance with your state's civil procedure laws. At the hearing, the burden of proof will rest on you to prove that not only did your ex fail to pursue her claim, but that this neglect was unjustified, under the circumstances. Depending upon the law, you may also have to show that you were somehow prejudiced by her delay. Judges have considerable discretion in denying motions to dismiss, so be prepared to lose, no matter how strong your case is.

Consequences of Denial of Motion

Moving to dismiss your ex's alimony claim for failure to prosecute and then losing on the motion will almost certainly spur her into action, bringing about a flurry of activity on a formerly dormant case. As such, if you spent your war chest on the dismissal motion, you may find yourself unable to pay counsel to defend against the alimony claim. Also, understand that many states allow counsel fees to the prevailing party in motions to dismiss, and some allow counsel fees to the dependent spouse in all alimony cases. As such, you may find yourself paying not only your attorney but hers, as well.

Administrative Dismissal

Although you may need to take the lead in securing a dismissal of a neglected alimony claim, in some cases you may need to do nothing at all. State or local rules may require your ex to complete certain steps -- discovery, mediation, submission of a pretrial order -- within certain time frames or to suffer automatic dismissal of her claim. Also, judges in some localities may conduct "clean-up calendars" to flush old cases from the docket system. Depending upon the law and the procedural stance of your ex's claim, this may bar her from re-filing it later.