Motions to Dismiss

Prior to or contemporaneous with an answer, a defendant may wish to file a motion to dismiss in response to a complaint for divorce. A motion to dismiss should only be filed and will only be granted by a court, if:

1. The allegations of the plaintiff’s complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts asserted in support thereof, and
2. The movant established that the plaintiff could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.

Put plainly, the burden is in on the defendant submitting the motion to dismiss to show that the plaintiff’s complaint lacks factual or legal merit or the motion to dismiss will be denied by the court. Mooney v. Mooney, 235 Ga. App. 117 (1998).

A defendant may choose to submit a motion to dismiss for one of two reasons: 1) to allege a lack of jurisdiction over the defendant; or 2) to show that the plaintiff’s claim is without legal or factual merit. As such, motions to dismiss are powerful tools that defendant’s possess in order to protect themselves against meritless claims made by a plaintiff. If you believe that a motion to dismiss may be appropriate in your case, contact an attorney and speak with him or her about your options.