How to Dismiss Alimony Claims for Failure to Prosecute

By Rob Jennings J.D.

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.

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.

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.

Ready to start your LLC? Start an LLC Online Now

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.

Ready to start your LLC? Start an LLC Online Now
Can the Respondent Finalize a Divorce if the Petitioner Won't Sign?

References

Related articles

How to Divorce Someone With a Narcissistic Personality Disorder

Even mentally healthy individuals might feel some sense of rejection when they learn their spouses want a divorce. Individuals diagnosed with narcissistic personality disorder will usually take the news even worse. They have a grandiose sense of self-importance and are hypersensitive to any implication that they’ve failed at an endeavor. States increasingly train their divorce court judges to deal with all sorts of difficult personalities, including those caused by mental disorders. However, if your spouse suffers from NPD, you may have to take some commonsense steps of your own if you want to end your marriage.

How to Terminate Alimony Due to Cohabitation in Ohio

It may seem unfair to continue paying alimony after your ex begins a new live-in relationship, but this sometimes occurs in Ohio. Your ability to terminate alimony, called spousal support in Ohio, depends a great deal on the terms of your divorce decree and whether you can prove the state's legal definition of cohabitation.

What Do You Tell the Court if You & Your Spouse Don't Want a Divorce Anymore?

When you take legal steps to end your marriage, you invite the court into your personal life. However, all states recognize no-fault divorce so you don't have to air your dirty laundry if you file your petition or complaint on no-fault grounds. The same applies to stopping your divorce proceedings if you change your mind about breaking up. You do not have to go into intimate detail when you ask the court to either postpone or dismiss your case.

LLCs, Corporations, Patents, Attorney Help

Related articles

What Happens When I Contest a Divorce in Tennessee?

You might want to contest your divorce for any number of reasons. You might object to your spouse’s grounds -- ...

Motion to Reinstate a Divorce Complaint

Deadlines and mandatory court filings can complicate the divorce process, especially when you’re representing ...

How to Stop Alimony if an Ex Cohabits

Alimony obligations can range in duration from months to years to forever. Regardless of how long you have been ordered ...

Can I Reopen a Dismissed Divorce in California or Do I Need to Start All Over?

If your divorce is dismissed in California, that means you must refile, unless the dismissal was caused by your or your ...

Browse by category