Frivolous & Excessive Motions in Divorce CasesSunday, January 22, 2017
A motion is a written request to the court for a certain ruling, order or action.
In divorce litigation, sometimes one party attempts to gain an advantage over the other party by filing frivolous or excessive motions. In this blog post, our divorce law attorneys discuss what makes a motion frivolous or excessive, and how such motions are dealt with Coral Springs & Parkland divorce courts.
A motion may be considered frivolous in Florida if the court finds that the moving party and the moving party's attorney knew or should have known that the motion was not supported by the facts or existing law. If a court finds that the motion has no merit and that the moving party should have known that, the moving party may ultimately be required to pay sanctions and the other party's attorney's fees.
For example, suppose that Spouse A's divorce attorney files a motion for change of venue (the location where the case will be heard). Upon review by Spouse B’s attorney, the motion appears to contain no valid legal basis for changing venue. In fact, it seems that the motion was filed solely for the purpose of delaying the divorce.
The procedure for defending against a frivolous motion is set forth in Florida Statute 57.105. In accordance with said statute, Spouse B's attorney would defend against Spouse A's motion for change of venue by preparing a motion for sanctions. A copy of the motion for sanctions would be provided to Spouse A's divorce lawyer, giving them 21 days to withdraw their frivolous motion. After 21 days, if the motion for change of venue had not been withdrawn, the motion for sanctions would be filed with the court and set for hearing.
At the hearing, Spouse B's attorney would need to prove that Spouse A knew or should have known that their motion was not supported by the facts or existing law, and was filed primarily for the purpose of unreasonable delay. If Spouse B prevailed at the hearing, Spouse A could be ordered by the court to pay some of Spouse B's attorney's fees as well as sanctions.
If the court has already ruled on a particular issue, filing another motion which essentially rehashes all of the arguments dealt with in the previous ruling is excessive. A motion also becomes excessive if the attorney filing said motion knows it is doomed to failure.
Let us return to the example of Spouse A's divorce attorney, who has just been defeated in the motion for change of venue described above. If Spouse A now files a motion for reconsideration, a motion for rehearing, and a motion for an award of attorney's fees, this would likely be excessive as well as frivolous. Spouse B's attorney may defend against such fruitless motions by using the procedure outlined in 57.105
An ethical attorney will not waste the resources of the client or the court by filing deliberately frivolous or excessive motions. Rather, the attorney will work closely with the client to ascertain the facts of his or her claim, determine whether that claim has legal merit and streamline any issues for the benefit of the client and the court.