Frivolous motions play a significant part in countless divorces. While part of the reason lies in the fact that divorce actions take place in an adversarial forum, the main motivating factor behind the filing of frivolous divorce motions lays in the fact that contending spouses are simply angry at one another, and therefore eager to use the family law system as a forum for one-upmanship.  

However, bickering couples seldom realize that courts do not put up with  wild, unsubstantiated accusations, and may very well saddle the frivolous party with a punishing cost judgment.

What Constitutes a Frivolous Motion? 

Frivolous motions are usually defined as claims and legal actions that are without merit. If there is no fundamental justification or otherwise substantiated evidence to support a family law proceeding, then it is commonly viewed as a frivolous action. “Substantiated” refers to an expert, professional, or other highly trained individual as a third party validating a divorce claim, thus warranting the motion. Proof plays a major part in determining whether or not a family law claim or motion is deemed to be a frivolous one.

A typical example in the case of divorce might be where one spouse accuses the other of  spousal abuse. This might be seen as frivolous and spiteful in nature if there were no substantiated evidence to back up an allegation of abuse, especially if the other party had evidence to show that they were a good spouse. It all boils down to validating the claim.

Divorce Laws May Differ

Depending on what jurisdiction you live in, the divorce laws may differ. For instance, under American law, each state may determine the cost and legal sanctions that follow from the filing of a frivolous divorce motion; Canadian courts have their own criteria for determining whether a divorce motion is frivolous, and what cost sanctions would follow from that. What remains pretty much common to all these jurisdictions is that the penalty is usually the same.

What is often the penalty in such divorce cases? Commonly, it is that the person creating the unwarranted proceeding must pay all - or a significant portion - of the lawyer fees incurred by both parties to the divorce proceeding. Cost award sanctions usually help to deter spouses from stepping into the malicious waters of spite and back biting.  Since a lot of resources go into each divorce proceeding, the court is often careful to ensure that its time is not wasted, as well as the other party’s time and resources.

The bottom line is this: Divorces are already a costly effort. If a claimant decides to be stubborn, he or she must be willing to face the legal consequences. In the end, family law courts will simply not tolerate being  used as a tool to hurt the other party to a divorce, and so, will likely employ cost penalties as a means to avoid that possibility.


The preceding article should not be taken, or relied upon, as legal advice.  It is presented "as is," for general information purposes and commentary.