In Florida, if a party to a civil lawsuit discovers that there is some kind of procedural problem with their case, they may file a motion to abate. A motion to abate is a legal maneuver in which one party to a civil case asks the court in which the case is pending to pause the lawsuit temporarily. During the pause, the party would correct the problem and then be positioned to proceed with the case.
It is important to note that a motion to abate does not address the merits of the case. If one party files the motion, it is not because there is a problem with the merits of their case. They do it because there is a procedural problem that needs to be addressed and can be fixed. A party can file a motion to abate in any civil lawsuit, whether it is a claim for nuisance, personal injury, or dissolution of marriage.
If the motion is granted, the case is temporarily paused until the problem can be corrected. The Florida rule of civil procedure and certain statutes regulate motions to abate, including the timing and notice requirements. A Florida lawyer consultation would help a person understand the role that a motion to abate plays in civil cases in that state.
How Does Abatement Work for Pending Actions in Florida?
The party to a lawsuit who wants to abate the action must file a motion to abate in the court in which the case is pending. The motion should be in writing and state the reasons for which abatement is required.
The motion should also state the relief the party seeks, e.g., abatement for a specific period of time, e.g., 60 days. The motion should also be filed with evidence that supports it, e.g., sworn statements testifying to facts that compel abatement and other documents that support the case.
The court holds a hearing on the motion which the parties should attend. The party making the motion should be prepared to present their case, including the reason for the abatement, the problem it would address and how much time the party needs to fix the problem that abatement would address.
The court then decides either to grant the motion or deny it. If the motion is granted, the court specifies a time for the abatement.
Florida has a special motion to abate for divorce cases, the “Motion to Abate Divorce.” This is an accommodation for the fact that in terms of pending actions and abatement, it is in divorce cases that abatement is used most often. As with a routine motion to abate, the motion to abate in a divorce case simply pauses the case under specific circumstances, putting it on hold until certain issues are resolved.
However, abatement in a divorce case is not used solely for the purpose of fixing some kind of procedural issue. A Motion to Abate Divorce in Florida is filed when circumstances make it impractical or inappropriate to proceed. One common reason is that the parties are involved in efforts to reconcile. Or they may attempt to mediate the issues in their divorce.
If both spouses believe there is a chance to repair the marriage, they may request a pause to attend counseling or mediation. Florida courts generally support marriages and couples to explore the possibility of reconciliation.
Another reason for which a court might grant a Motion to Abate Divorce is the health or incapacity of a spouse. If one party is hospitalized or receiving mental health treatment, it may not be considered fair to continue the divorce. It may not be possible. Courts recognize that a spouse should not be forced to participate in a legal proceeding when they are medically incapable to do so in a meaningful way.
Is Abatement Appropriate if There Are Duplicate Claims under Florida Law?
When the same parties are involved in the same lawsuits that are pending in 2 different courts in Florida, then a motion to abate may be the right maneuver to resolve the situation.
In Florida, a party to the first lawsuit would file a motion to abate in the case that was filed last. They would have to demonstrate that the second case is duplicative of the first and that proceeding with both would be inefficient.
The court will evaluate whether the first case has jurisdiction and whether that case adequately addresses the issues at hand. If the motion is granted, the second case is suspended until the first case is resolved.
Does the Death of a Party Abate a Claim in Florida?
If the claim of a party to a lawsuit is not extinguished by their death, then a representative of the plaintiff or defendant should file a motion to substitute a new party in the place of the deceased party.
The death of a party whose participation is necessary to a lawsuit abates the cause of action. The trial court is then not able to move to trial or other hearing of the rights of the parties without a period of abatement based on death. Substitution of the proper party is critical. For example, that might be the executor of the estate of the deceased party.
Are There Exceptions to Abatement and Revival Rules in Florida?
A motion to abate should be filed promptly. The best timing would be to file within the time the defendant has to file their initial answer to a complaint, which is typically 30 days.
Courts regard motions to abate as a maneuver that can be waived. So it is not advisable to wait too long as waiting may forfeit the right to abate. Of course, a motion to abate must be submitted to the court in written form. It must clearly state the specific defect that requires correction and the relief that the party seeks, e.g., abatement for the specified time required to correct the defect.
If a lawsuit involves parties to a contract, their contract may contain a clause that specifies the choice of law and the forum in which disputes should be litigated. If one party files a lawsuit that involves a claim related to the contract, e.g., a claim for breach of contract, in a jurisdiction other than the one identified in the contract provision, a court may grant a motion to abate in order to allow the party to file in the right jurisdiction.
How Can a Lawyer Help With Pending Actions and Abatement?
Some very technical aspects of civil lawsuits may be involved in a motion to abate. Determining when one should make the motion and how it would best be presented to a court can involve complicated legal analysis. It would require the kind of analysis for which a lawyer could provide needed insight.
It would be best to talk to a Florida lawyer about whether a motion to abate would be the right move, how the defect in the case would be corrected and what the process is for making the motion.
Can I Get Help From a Florida Personal Injury Lawyer?
If you are a party to a lawsuit and believe that a motion to abate is called for in your case, you want to talk to a Florida personal injury lawyer. As we can see from the above review, seeking an abatement is a technical issue and can be complex as well. It is important to know what defect needs correction, how it can be done and how much time it would take.
Your Florida personal injury lawyer is going to be well informed about procedure in civil lawsuits and can provide the guidance you need to succeed with a motion to abate if that is the right move in your case.
If your case is a divorce case and you think a Motion to Abate Divorce would be helpful, you want to talk to a Florida divorce lawyer in your area. They can guide you through the motion process in your divorce case. LegalMatch can help connect you with the right attorney for your needs.
