Being involved in family law litigation can be nerve-wracking on its own, but what happens if you have filed for certain relief and your soon-to-be ex files a Motion to Dismiss against you? Or, when your soon-to-be ex files a frivolous pleading against you with no legal basis,?

There are two types of Motions to Dismiss in Illinois: 2-615[1] Motions and 2-619[2] Motions. While each Motion seeks the same relief– the dismissal of the Petitioner’s pleading– they are filed for different reasons. Having experienced attorneys who understand these differences will ensure that: 1) pleadings filed in your case are precise and efficient, making sure they are not vulnerable to Motions to Dismiss; 2) you are safe from participating in unnecessary litigation when a legally insufficient or defective pleading is filed against you.

A Motion to Dismiss pursuant to 735 ILCS 5/2-615 alleges that there are defects on the face of the pleading. This typically means that the pleading does not state a claim for which the relief being requested can be granted. For example, the Illinois Marriage and Dissolution of Marriage Act (IMDMA) requires a showing of a substantial change in circumstances for a maintenance obligation to be modified.[3] If a party to a case files a Petition to Modify Maintenance but fails to allege a substantial change in circumstances, the Petition to Modify Maintenance is vulnerable to a 2-615 Motion to Dismiss. If the Motion to Dismiss is granted, the Court could strike some or all of the pleading, and/or require the Petitioner to make the pleading more definite and certain.

A Motion to Dismiss pursuant to 735 ILCS 5/2-619 seeks an involuntary dismissal of the pleading due to a legal defect or defense. This could mean the Court does not have jurisdiction to hear the case, there is a prior court order/judgment barring the relief requested, or some other affirmative matter which legally defeats the pleading. For example, the IMDMA states that the disposition of property in a divorce cannot be revoked or modified.[4] If a Petitioner filed a Petition to Modify the disposition of property in a divorce judgment, that pleading could be dismissed in its entirety under 2-619.

The right attorneys can help you effectively navigate the issues presented with a Motion to Dismiss and ensure that your case does not fall victim to them.

Victoria R. Paton, Of Counsel

For more on Ms. Paton, please visit:
www.beermannlaw.com/team/victoria-r-paton.

[1] 735 ILCS 5/2-615
[2] 735 ILCS 5/2-619
[3] 750 ILCS 5/510(a-5)
[4] 750 ILCS 5/510(b)