STBX Filed Motion to Dismiss Divorce Complaint


#1

I filed a divorce complaint on Feb 3, 2010. My STBX filed a motion for extension of time on Feb 18, 2010. On April 1, 2010, she filed a Motion to Dismiss.

I have 2 questions.

  1. The extension of time gives them until April, 6, 2010. Since they filed a motion to dismiss, can I file a notice of hearing? If so, how many days out do I have to give them for the notice?

  2. Can the courts dismiss my motion for absolute divorce?


#2

Why are they seeking a dismissal?


#3

“pursuant to Rule 12B(6) of the North Carolina Rules of Civil Procedure for failure of the Complaint to state a claim upon which relief can be granted”

FYI: I used the Divorce Complaint supplied in the DIY Membership that I had for several months.


#4

Had you been separated for a year and a day at the time you filed?


#5

Yes, we separated 1/28/2009. I filed on 2/3/2010.

Can I file a notice of hearing for the complaint? If so, do I have to schedule it at calendar call or can I just do it on the standard day for short items with the court?


#6

You may set the divorce for hearing.


#7

60 days have passed and my STBX did not file an answer. She only filed a motion to dismiss. I sent a notice of hearing for next week.

I have her initial complaint for child custody, support, etc… where she stated date of separation and date of marriage.
I have receipt that she was served by the sheriff.

What happens if she doesn’t show up? Will I get my divorce? Also, what do I do about their motion to dismiss my divorce complaint?


#8

If she does not show up, or pursue her motion to dismiss the court should grant the divorce.


#9

Are there grounds to dismiss the complaint? I used the one from the DIY system and just changed names.


#10

If you included all the correct factual allegations, signed the verification, and served her properly there should be no reason to dismiss.


#11

I just read the complaint. I accidently stated I have lived in NC for less than 6 months. I meant more than. Temporary custody and other orders state that I have been here more than 6 months. Will that get it dismissed or will the previous orders show that it was a typographical error?

If it will get it dismissed, can I file an amended complaint with the word more than in it and still have my hearing on next Thursday?


#12

You may file an amended Complaint, but will have to seek the Court’s permission to do so since a responsive pleading has been filed. Let the court know that you have good reason to amend the Complaint ( a simple typographical error). This will likely push the divorce back a few weeks.


#13

I have the amended Complaint ready to take with me Thursday to correct the typo errors. I am hoping the judge will use the prior pleadings and orders to show that it is a simple typo.

I just received a Motion for Attorney Fees from my STBX. It states, “Defendant in the above entitle action to move for attorney fees pursuant to Rule 11 of the North Carolina Roles of Civil Procedure, due to the failure of the Complaint to state a claim upon which relief can be granted, and for stating a claim that is frivolous in nature.”

I am confused. First he says I failed to state a claim. Second, he states I made a claim that is frivolous. How can I fail to state a claim and state a claim that is frivolous in the same Complaint?

What does this mean? Is this just a ploy to harass me? Would I have to pay attorney fees for trying to get a divorce?

Should I file a Rule 11 to stop these motions?


#14

Without seeing the documents I have no way of knowing what the attorney alleges makes the Complaint deficient.


#15

The judge denied my motion for summary judgement based on the fact that I did not state that I have lived in NC for more than 6 months. He did not dismiss the complaint.

I filed an amended complaint that states that I have been a resident of NC for more than 6 months. Can I immediately file a motion for summary judgement or do I need to wait 30 days for them to answer the amended complaint?


#16

You need to serve the opposing party and wait the 30 days.