Motion to Dismiss

A Motion to Dismiss in a Florida Divorce Case is a request for the Court to dismiss, or terminate, a lawsuit.

Motion to dimiss document

 

A party cannot move to dismiss a divorce case simply because they do not want to get divorced.  Rather, parties can move to dismiss a divorce case because the divorce was filed in the wrong place.

Motion to Dismiss- Lack of Subject Matter Jurisdiction

The most common type of Motion to Dismiss in Florida is the Motion to Dismiss for Lack of Subject Matter Jurisdiction.

To get divorced in Florida, one of the parties must have been a resident of Florida for at least the six months prior to filing the Petition for Dissolution of Marriage.  This is required and cannot be “waived” by agreement of the parties.  However, the question of what actually is “residency” comes up often. Especially when one or both of the parties has multiple homes in multiple states.

Definition of Residence

In Florida, residence is defined as actual presence in Florida couple with intent to make Florida the place of residence.
Yet, perhaps contradictorily, the party does not have to actually be present during the previous six months if they are temporarily domiciling somewhere else.

So, for example, if a party had established residence in Florida but was temporarily traveling or staying elsewhere but maintained residency in Florida, then that party would maintain Florida residence.

Interestingly, once you file, you can move and still have jurisdiction in Florida for purposes of the divorce, even while the divorce action is pending.

Residence in Two States

Sometimes the facts suggest that a party may be  a resident of two (or more) states.  Think snowbirds that come to Florida for the Winter.  Then we need to figure out which State the parties appears to be the primary residence.   The test is the “chief seat of the party’s household affairs or interests”. Beaucamp v. Bueaucamp, 508 So.2d 419 (Fla 2DCA 1987).

Needless to say, these cases can turn on very specific facts, including:

  • How many months per year a party resides in a given state,
  • Where the party has a valid drivers license,
  • Where the party is registered to vote,
  • Where the party maintains bank accounts
  • Where the party pays State taxes
  • Where the party registers automobiles

Motion to Dismiss- Improper Venue

A party filing a Motion to dismiss for improper venue is saying that Florida is the right State to get divorced, by the County it is filed in is the wrong County.

IN Florida divorce courts, the proper venue , or County, to file divorce paperwork is the County tha the parties last resided together as a marital couple or the County where the non-filing spouse resides.  Note however, that an out of State spouse cannot object to venue.  Also, unlike Motions to Dismiss for Jurisdictional issues, a Motion to dismiss for imporper venue must be filed before filing an Answer, or else the objection to the venue is deemed “waived” by the Court.

A more appropriate Motion to File would be a Motion to Transfer to Another Venue. Thsi would ve the filing party the fees and costs associated with re-filing the Case in another County.