# STBX Filed Motion to Dismiss Divorce Complaint **URL:** \ **Category:** Divorce and Separation Answers\ **Created:** [April 4, 2010, 1:19am UTC](https://forum.rosen.com/t/stbx-filed-motion-to-dismiss-divorce-complaint/9988 "2010-04-04T01:19:35Z")\ **Posts on this page:** 16\ **Page:** 1
**Author:** ![OverLitigated](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@OverLitigated](https://forum.rosen.com/u/OverLitigated)\ **Post date:** [April 4, 2010, 1:19am UTC](https://forum.rosen.com/t/stbx-filed-motion-to-dismiss-divorce-complaint/9988/1 "2010-04-04T01:19:35Z")
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? ---
**Author:** ![Erin\_Clarey](https://avatars.discourse-cdn.com/v4/letter/e/9de0a6/32.png) [@Erin\_Clarey](https://forum.rosen.com/u/Erin_Clarey)\ **Post date:** [April 5, 2010, 3:46pm UTC](https://forum.rosen.com/t/stbx-filed-motion-to-dismiss-divorce-complaint/9988/2 "2010-04-05T15:46:04Z")
Why are they seeking a dismissal? ---
**Author:** ![OverLitigated](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@OverLitigated](https://forum.rosen.com/u/OverLitigated)\ **Post date:** [April 5, 2010, 4:41pm UTC](https://forum.rosen.com/t/stbx-filed-motion-to-dismiss-divorce-complaint/9988/3 "2010-04-05T16:41:13Z")
“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. ---
**Author:** ![Erin\_Clarey](https://avatars.discourse-cdn.com/v4/letter/e/9de0a6/32.png) [@Erin\_Clarey](https://forum.rosen.com/u/Erin_Clarey)\ **Post date:** [April 5, 2010, 4:58pm UTC](https://forum.rosen.com/t/stbx-filed-motion-to-dismiss-divorce-complaint/9988/4 "2010-04-05T16:58:20Z")
Had you been separated for a year and a day at the time you filed? ---
**Author:** ![OverLitigated](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@OverLitigated](https://forum.rosen.com/u/OverLitigated)\ **Post date:** [April 5, 2010, 5:16pm UTC](https://forum.rosen.com/t/stbx-filed-motion-to-dismiss-divorce-complaint/9988/5 "2010-04-05T17:16:15Z")
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? ---
**Author:** ![Erin\_Clarey](https://avatars.discourse-cdn.com/v4/letter/e/9de0a6/32.png) [@Erin\_Clarey](https://forum.rosen.com/u/Erin_Clarey)\ **Post date:** [April 5, 2010, 7:47pm UTC](https://forum.rosen.com/t/stbx-filed-motion-to-dismiss-divorce-complaint/9988/6 "2010-04-05T19:47:32Z")
You may set the divorce for hearing. ---
**Author:** ![OverLitigated](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@OverLitigated](https://forum.rosen.com/u/OverLitigated)\ **Post date:** [April 13, 2010, 3:15pm UTC](https://forum.rosen.com/t/stbx-filed-motion-to-dismiss-divorce-complaint/9988/7 "2010-04-13T15:15:07Z")
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? ---
**Author:** ![Erin\_Clarey](https://avatars.discourse-cdn.com/v4/letter/e/9de0a6/32.png) [@Erin\_Clarey](https://forum.rosen.com/u/Erin_Clarey)\ **Post date:** [April 13, 2010, 5:52pm UTC](https://forum.rosen.com/t/stbx-filed-motion-to-dismiss-divorce-complaint/9988/8 "2010-04-13T17:52:02Z")
If she does not show up, or pursue her motion to dismiss the court should grant the divorce. ---
**Author:** ![OverLitigated](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@OverLitigated](https://forum.rosen.com/u/OverLitigated)\ **Post date:** [April 13, 2010, 8:14pm UTC](https://forum.rosen.com/t/stbx-filed-motion-to-dismiss-divorce-complaint/9988/9 "2010-04-13T20:14:51Z")
Are there grounds to dismiss the complaint? I used the one from the DIY system and just changed names. ---
**Author:** ![Erin\_Clarey](https://avatars.discourse-cdn.com/v4/letter/e/9de0a6/32.png) [@Erin\_Clarey](https://forum.rosen.com/u/Erin_Clarey)\ **Post date:** [April 14, 2010, 1:24am UTC](https://forum.rosen.com/t/stbx-filed-motion-to-dismiss-divorce-complaint/9988/10 "2010-04-14T01:24:27Z")
If you included all the correct factual allegations, signed the verification, and served her properly there should be no reason to dismiss. ---
**Author:** ![OverLitigated](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@OverLitigated](https://forum.rosen.com/u/OverLitigated)\ **Post date:** [April 14, 2010, 1:27pm UTC](https://forum.rosen.com/t/stbx-filed-motion-to-dismiss-divorce-complaint/9988/11 "2010-04-14T13:27:58Z")
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? ---
**Author:** ![Erin\_Clarey](https://avatars.discourse-cdn.com/v4/letter/e/9de0a6/32.png) [@Erin\_Clarey](https://forum.rosen.com/u/Erin_Clarey)\ **Post date:** [April 14, 2010, 2:23pm UTC](https://forum.rosen.com/t/stbx-filed-motion-to-dismiss-divorce-complaint/9988/12 "2010-04-14T14:23:58Z")
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. ---
**Author:** ![OverLitigated](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@OverLitigated](https://forum.rosen.com/u/OverLitigated)\ **Post date:** [April 14, 2010, 8:59pm UTC](https://forum.rosen.com/t/stbx-filed-motion-to-dismiss-divorce-complaint/9988/13 "2010-04-14T20:59:08Z")
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? ---
**Author:** ![Erin\_Clarey](https://avatars.discourse-cdn.com/v4/letter/e/9de0a6/32.png) [@Erin\_Clarey](https://forum.rosen.com/u/Erin_Clarey)\ **Post date:** [April 15, 2010, 2:52pm UTC](https://forum.rosen.com/t/stbx-filed-motion-to-dismiss-divorce-complaint/9988/14 "2010-04-15T14:52:02Z")
Without seeing the documents I have no way of knowing what the attorney alleges makes the Complaint deficient. ---
**Author:** ![OverLitigated](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@OverLitigated](https://forum.rosen.com/u/OverLitigated)\ **Post date:** [April 22, 2010, 1:57pm UTC](https://forum.rosen.com/t/stbx-filed-motion-to-dismiss-divorce-complaint/9988/15 "2010-04-22T13:57:40Z")
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? ---
**Author:** ![Erin\_Clarey](https://avatars.discourse-cdn.com/v4/letter/e/9de0a6/32.png) [@Erin\_Clarey](https://forum.rosen.com/u/Erin_Clarey)\ **Post date:** [April 22, 2010, 2:59pm UTC](https://forum.rosen.com/t/stbx-filed-motion-to-dismiss-divorce-complaint/9988/16 "2010-04-22T14:59:48Z")
You need to serve the opposing party and wait the 30 days.