Pursuant to Connecticut Practice Book § 25-11, the order of pleadings in a connection divorce action are: (a) Plaintiff’s Complaint, (b) Defendant’s Motion to Dismiss the Complaint, (c) Defendant’s Motion to Strike the Complaint of Claims for Relief, (d) Defendant’s Answer, Cross-Complaint, and Claims for Relief, (e) Plaintiff’s Answer. The pleadings’ order must be followed as the filing of any pleading effectively waives the right to file any other pleading that precedes it. The first responsive pleading by the defendant must be filed within thirty days of the return date. After that, the pleadings advance one step every thirty days from the filing of the previous pleading or order from the court on the previous pleading.
Is There A Strategic Benefit To Filing Certain Pleadings?
Defendant’s Motion to Dismiss the Complaint. A motion to dismiss should be used to assert: (i) lack of jurisdiction over the subject matter, (ii) lack of jurisdiction over the person, (iii) insufficiency of process, and (iv) insufficiency of service of process. A defendant wishing to assert grounds ii, iii, or iv above must do so by filing the motion to dismiss within thirty days of the filing of an appearance. Any potential claim not asserted within the thirty days is waived. A claim of lack of subject matter cannot be waived and can be raised by parties or by the court at any time. A memorandum of law, and where appropriate, supporting affidavits as to facts not apparent on the record, must be filed in conjunction with the motion to dismiss. If an adverse party objects to the motion to dismiss, they must file an objection, and a memorandum of law at least five days before the motion to dismiss is to be considered on the short calendar. If a motion to dismiss is denied with respect to any jurisdictional issue, the Defendant may plead further without waiving his or her right to contest jurisdiction further.
Defendant’s Motion to Strike the Complaint. A motion to dismiss should be used to contest: (i) the legal sufficiency of the allegations of the complaint, or of any counts thereof, to state a claim upon which relief can be granted, (ii) the legal sufficiency of any claim for relief in any such complaint, (iii) the legal sufficiency of any such complaint, or any count thereof, because of the absence of any necessary party, (iv) the joining of two or more causes of action which cannot properly be united in one complaint, whether the same can be stated in one or more counts, or (v) the legal sufficiency of any answer to any complaint or cross-complaint or any part of the answer contained therein. As with a motion to dismiss, each motion to strike must be accompanied by an appropriate memorandum of law, citing the legal authorities upon which the motion relies. Similarly, if an adverse party objects to the motion to strike, they must file an objection and memorandum of law at least five days before the motion to strike is to be considered on the short calendar. If a motion to strike is granted in whole or part, the party whose pleading has been stricken may file a new pleading. If a party failed to do so within fifteen days, the court may, upon motion, enter judgment against the said party on the said stricken complaint.
Defendant’s Answer, Cross-Complaint, and Claims for Relief. The defendant’s answer is a response to each claim in the plaintiff’s complaint. Only three responses are proper: (i) admit, (ii) deny, or (iii) the defendant has insufficient information to form a belief and leaves the pleader to his or her proof. The cross-complaint and claims for relief is the defendant’s lawsuit against the plaintiff. Even if a defendant does not dispute the type of proceeding, it is generally advisable to file a cross-complaint because if the plaintiff withdraws the complaint and the defendant wishes to proceed, the action is not terminated. If a cross-complaint is not filed, the action is terminated, and the defendant would then need to file a complaint and restart the entire process.
Special Pleadings If A Premarital or Postnuptial Agreement Exists.
It is important to be aware of the existence of any premarital and/or postnuptial agreements, as the time to seek enforcement of the same is time-sensitive. The party seeking enforcement must specifically demand enforcement of the agreement, including its date, within the party’s claim for relief. If the plaintiff does not seek enforcement in his or her complaint, and the defendant wishes to seek enforcement, he or she must do so within sixty days of the return date, unless otherwise permitted by the court. Conversely, if a party seeks to avoid the enforcement of a premarital and/or postnuptial agreement claimed by the other party, he or she shall file a reply specifically demanding avoidance of the agreement and stating the grounds thereof. The time to file such pleading is within sixty days of the claim seeking enforcement unless otherwise permitted by the court.
Pursuant to § 46b-36g(a) a premarital agreement shall not be enforceable if the party against whom enforcement is sought proves: (i) such party did not execute the agreement voluntarily, (ii) the agreement was unconscionable when it was executed or when enforcement is sought, (iii) before the execution of the agreement, such party was not provided a fair and reasonable disclosure of the amount, character and value of the property, financial obligations and income of the other party, (iv) such party was not afforded a reasonable opportunity to consult with independent counsel.
Broder Orland Murray & DeMattie LLC, with offices in Westport and Greenwich, CT, concentrates specifically on the areas of family law, matrimonial law, and divorce. We are well versed in the procedure of pleadings in family law matters and counsel our client about the impact and use of various pleadings in his or her case.