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  • Motion to dismiss

    Hello, My fiancé is going to be filing a motion to dismiss his ex wife's divorce application (she filed the paperwork incompletely apparently and is not doing anything to fix it, so we would like to dismiss her application and proceed with our own application for divorce).

    I tried to google which form that would be but couldn't find one. All I could find was motion to change forms, does anyone know what the correct form would be?

  • #2
    Are you sure that it is legally possible to ask the court to dismiss someone else's application for a divorce? Doing so would mean that in effect you are asking the court to say that your fiance's wife must remain married to him, despite her intention to divorce (I know this is because you want your fiancé to be the one filing, but what you are asking the court to do is to overrule her expressed desire to leave the marriage).

    Your fiance's ex can withdraw her own application for divorce, but if she doesn't wish to withdrawn, I don't think you can force it to be withdrawn. She is the petitioner/plaintiff/applicant and it's her matter before the court. Your fiancé can't stop her from seeking a divorce any more than he can stop her from buying a car. Judges can and do hold back on granting a divorce if they are not satisfied that all the important issues (child custody, division of property, etc) have been addressed properly, but that's at their discretion.

    My ex threatened to go this route when we were partway through our divorce (for which I was the applicant). He decided he didn't like some of the terms in our separation agreement and wanted me to withdraw my application so that he could re-start with a new petition written by him. When I wouldn't withdraw, he threatened to "remove my standing with the court" and ask to have my application throw out, only to learn that this is impossible, for the reasons above.

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    • #3
      Hmmm I'm not sure, I'm just going by what the courthouse told him to do. He called and spoke to them to find out the status of his divorce, they told him the initial application was denied due to lack of documentation and they sent her something asking for the documentation. He also asked if he could start his own divorce application and they said no not with this one still open. They said he would have to file to dismiss this one and then could go with his own. He also asked if there was a time limit on the one she started and they said it would stay open indefinitely.

      Does this mean she can essentially hold him in this limbo forever ?

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      • #4
        It was filed as a simple divorce however the reason it was denied is because she put both separation as well as cruelty for the reasons for the divorce, however she can't provide any prof of cruelty(abuse etc) because that never happened.

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        • #5
          Originally posted by Wyntermcd View Post
          Hmmm I'm not sure, I'm just going by what the courthouse told him to do. He called and spoke to them to find out the status of his divorce, they told him the initial application was denied due to lack of documentation and they sent her something asking for the documentation. He also asked if he could start his own divorce application and they said no not with this one still open. They said he would have to file to dismiss this one and then could go with his own. He also asked if there was a time limit on the one she started and they said it would stay open indefinitely.

          Does this mean she can essentially hold him in this limbo forever ?
          You might want to talk to a lawyer about this one rather than the clerk at the courthouse. It sounds like her application was incomplete (rather than "denied"). Remember that divorces can take a very long time - if you've been waiting a few months, that's not unusual. If it's been a few years, on the other hand, you might be able to make the case that this application has been abandoned, so your boyfriend can start his own. However, I don't know how you would do that.

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