Motions in a Family Court Matter
Family Court motions serve a very important function for litigants in family law cases. In the Family Court there is not likely a serious client that has not at some point in their case filed or been the legal subject of a court motion. Indeed, it is oftentimes the case that the way to "resolve" a case is to file multiple motions to get from point A to point B (no offense to settled matters). Given how often motions are filed in family law cases, a case in the New Jersey Family Court system is not likely to ever go without even just one motion.
But what is a motion in Family Court? A Family Court Motion is the way that a party to the case can request for the court to enter an Order for them in the case. You ask for the court’s assistance and intervention with an issue, or issues, in the case. It is not as simple as that , of course. You likely need to demonstrate to the judge your legal basis (or law) for the relief you are seeking. Motions can either be routine, or they can be emergent, depending on the level of relief sought and/or the immediate needs of the case.
The working rationale behind the Family Court Motion system is that it gives the power to litigants to ask the court to enforce 1) prior orders of the court; or 2) the negotiated settlement agreement of the parties. Moreover, it also helps to manage the case for the court, so that they do not have to be locked into a full-blown trial for any issue that may come up.
The Judge can decide on whether to grant the relief requested, deny the relief requested, or modify the relief requested. That’s for the judge to decide based on the issues at hand. Usually, there is a hearing held later for the judge to make his/her decision.
Types of Motions You’ll See in Family Court
Family law litigants will often not know what is the appropriate motion to file when confronted with a given circumstance. It is very common that a new client will come into the office and tell us (sometimes while on the way to court shortly thereafter) that they "need a motion for something" and they will often be as confused about what exactly that something is. This is especially true during the pendency of an action and during final judgment when post judgment matters arise.
Motions will often be filed in the following situations and for the following reasons:
- To request pendente lite (temporary) relief due to a party’s financial need (alimony, child support, legal fees)
- To request pendente lite relief for custody, parent of primary residence, parenting time, child relocation, a parent’s desired move, etc.
- To resolve legal issues related to a child’s involvement in a guardian ad litem program or custody evaluative process
- To resolve discovery disputes
- To enforce litigant’s rights (i.e., a contempt motion for violation of a court order)
- To remove or modify restraints or injunctions on a litigant’s ability to pursue certain actions
- To approve a settlement agreement reached by the parties that the court must then incorporate into a Judgment of Divorce
- To modify an Order or Judgment
- To remove a case from Economic part
- To terminate a Spousal Support
- To remove an attorney (or some part thereof) from a case
- To designate a non-party a party in the action
- To join a new party in an action
- To seek certification of an interlocutory order for appeal purposes
- To seek vehicle seizure or sale of a person’s real property for failure to pay child support
- To request a court to appoint a lawyer for child (referred to as a Law Guardian)
- To request an adjournment or extension of time
- To vacate a certificate of default
- To compel a voice sample for child support enforcement purposes.
Bringing a Motion in Family Court
Filing a motion in the family court is pretty straightforward. First, you need to get the motion that you wish to file as well as the order you wish the judge to sign. You can file a standard motion and order from one of your previous cases or you can get a motion and order from the court’s website. I encourage you to check out the court’s website for your particular county because they are not always the same. The motion and order should be completed by typing in the questions and answers. If there are no questions or answers, the motion should be completed by typing in the top information including the parties names and the case number. I do not encourage people to handwrite the motion. I also recommend using a standard format for pleadings and orders that is easy to read. For instance, I do not encourage the use of five different font styles. I typically use Times New Roman in 14 point font for the questions and answers and 10 point font for the remaining information including the parties names.
After you have completed the motion and order, you must sign and date it at the bottom and then enter the date that you are signing the motion. Typically you must file the motion within 30 to 60 days of the event you wish to address in your motion. The 30 day deadline usually falls on non final matters or matters that are still pending before the court. A 60 day deadline typically applies if you are seeking to change or modify as aspect of your final order.
Once you have filed the motion and order, you will have to serve the other party. The other party must be given proper notice of the filing of your motion. The proper notice is usually a copy of the signed and filed order as well as a "Notice of Hearing" that contains the date and time of the hearing. Sometimes you can get a notice of hearing from the court, but often times these hearings are set by you. If you set the hearing with the local family court support office, you will have to serve a copy of the original motion and order as well as a notice of hearing to the other party. In order to receive service on the other party, you will have to file an affidavit of service that is normally on the reverse side of the order. The affidavit of service is completed by the person who actually serves the papers on the other party and delivers it to the court.
After the other party has been properly served with the motion and order, they usually have 10 days to respond to any questions, file a response to the motion or response to the order. If you included a proposed order and the other party agrees to it, often the other party does not feel the need to file a response to the motion or order. However, if they disagree with any aspect of motion and order, they may have to file a response to the motion or response to the order. A response is an order proposed by the responding party. In other words, you have filed an order that you want the judge to sign and the other party has responded with their own order they want the judge to sign. You may or may not have the opportunity to file a reply to the response or a proposed order based on the response to the motion. This will depend on whether you receive a reply date at the time of the hearing. If you do not receive a reply date, you will have to file a formal response which is called a motion and note. A motion and note requires you to file a motion, response and an additional order. However, if the other party has signed a proposed order that is acceptable to you, then you do not have to file any response or reply. Instead you can present the other party with their order that they signed and ask the court to sign the same order.
Elements of a Motion
Motions are essentially requests for the court to take specific action. They can be simple in design and content or they can be complex. Certain motions have specific requirements. For example, a motion to change custody must set forth the procedural requirements of Tenn. Code Ann. § 36-6-101(a)(2) (1996) as well as the Gilbert v. Gilbert factors. Tenn. Code Ann. § 36-6-101(a)(14) (2002).
Generally, motions to be filed in family court require three components: (i) Factual Background, (ii) Legal Argument, and (iii) Prayer for Relief.
Factual Background
The factual background sets out the factual allegations that support the request for the relief sought. In the divorce case example that follows in the next section, the fact that the parties were married twenty-seven (27) years helps establish that a marriage of long duration exists.
Legal Argument
The legal argument section sets out the legal basis for the requesting party’s rights in the relief sought. In the divorce case example that follows in the next section, the fact that the parties were married twenty-seven (27) years establishes that the requesting party is entitled to half of the marital estate.
Prayer for Relief
Every motion or other pleading must end with the requesting party ("movant") stating a request for the relief sought in the written document. This section should not be overlooked. Failure to request a specific form of relief in the motion may result in the Court not awarding the relief even if the facts and law support an award of such relief.
Answering a Motion Against You
If a motion is filed against you, then you need to be ready and ensure that you have a qualified and knowledgeable attorney on your side.
Generally speaking, for each motion that is filed, there will be a corresponding response. When a motion is filed against you, you must be sure to preserve your own rights. If an Order is entered against you, that Order will likely be binding upon you until it is set aside or reversed. When responding to a motion: first, review the other parties’ allegations thoroughly; second, prepare your own response, including facts refuting their allegations; and third, work with your attorney to prepare for the hearing in Court.
Often times, the Court will want to resolve the motion without holding a hearing. If this happens, the Court will usually look at each party’s Affidavit (or Affidavit of Response), and then enter an Order. If an Order is entered against you by the Court, the Order can usually appealable to the Appellate Court.
If there is a hearing on the motion and if both parties are present, the Court will usually require an ALL DAY hearing. In that case, both parties will be asked to come back later to testify about their position. There are very few family issues which can be resolved in a few minutes. Hearings should take hours; if not a few days.
If a true emergency exists , then the Court will generally order a hearing within the next few days to determine if there is an emergency. If the Court believes an emergency exists, then the parties will be ordered to file more information with the Court in order to determine how to protect those rights. Usually, the Court will set a short hearing (usually lasting 30 – 60 minutes) to try to resolve the emergency issue, but it will kick the rest of the case down the road for resolution at a later date. In that all day hearing, you’ll have the opportunity to associate each fact with every provision of law and each provision of case law to prove your point. The Court will listen to both sides, and the Court will decide how to resolve the motion.
During the interim period between the initial filing and the time when the motion is resolved, you will be living under the terms of the motion. If you do not like the terms of that motion, then you will want to do all you can to resolve the case as quickly as possible. If you agree to follow the terms of the motion, then you will be bound to those terms until the case is resolved.
Tips for Winning a Motion Hearing
In addition to written submissions, oral argument during the motion calendar can be an important component of a motion hearing. Motions on the Family Court’s motion calendar can be basically "one-off" proceedings where the judge may not have read every line of every submission, and often lacks the overall context in which a specific motion is being brought. In that environment, there are a few different tips for attorneys to make sure the judge has the requisite information to rule on a motion in a manner favorable to you.
As noted above, motions are often "one-off" proceedings. The judge you may get at argument may not have any real familiarity with the underlying case. So, it is important to hit the judge with the basic background at the start of the hearing. You want to make sure that judge knows A) what the underlying action is about, B) how the subject motion fits into that action and C) why the relief you are requesting is proper. If you are the moving party, it is important that you lay out all of the relevant facts which would entitle you to an order. In the instance that you are the responding attorney on a motion, it is important to note that motion often contains only one side of the story. You want to make sure that the judge knows that there is more to the story.
In addition to laying out the facts, you want to cite to the controlling law on the subject so the judge can see the legal precedent for the relief. For example, if you seen a child support award that your opponent is seeking amount to more than the parties’ combined income, you shouldn’t simply argue that the award is too high. You should explain to the judge that the amount that is being sought does not fit within the statutory child support guidelines. At that point, you should provide the judge with the applicable statutes and case law explaining that the child support guidelines stop when the parties’ income exceeds $750,000 per year.
Simply arguing for hours on end without regard to the law or the facts is usually counterproductive.
Like all other court appearances, be on time for a motion hearing. Sometimes judges will take the bench some number of minutes before the official start of the motion calendar, so don’t show up right at 8:30 a.m. Even worse is to arrive at the appearance after the judge has already been on the bench. Be early, especially for the start of the motion calendar on Friday. If you show up 10 minutes early for a 30-minute motion calendar, you should be good for the duration. As the 10-minute mark approaches, you will see some attorneys and parties in the hallways start to shuffle toward the door of the courtroom. Again, be sure to be early.
The attorneys who have the reputation as the better advocates are the ones who prepare their clients well for the appearance. At the start of the case, it is important to have a clear and candid conversation with your client to set their expectations. Especially in a child custody matter, you want to be fully on the same page with respect to the strategy for the case and the client’s appearances in court. Presenting or defending a case in a custody matter is not something you want to do on the fly. You want to have a plan that you’ve set in advance, followed by your client.
In addition to setting the strategy, it is important in some instances to know how to prepare a client for being cross-examined. For example, if you have a client who has had an affair and who may be questioned about the subject during a custody matter, you want your client to know what to expect. You want to avoid a circumstance where you client gets caught off guard and starts crying uncontrollably on the stand, or in any other way unravels emotionally. This goes to setting expectations for the appearance.
Speaking with a Family Lawyer
If pending a motion is going to have a substantial impact on your life or the lives of those entrusted to you, consulting with a family law attorney is not only wise, it may be critical. In large part, the assistance provided by a family law attorney depends on when and for what reasons you consult with them. Though some clients believe it is best to "handle matters themselves" until it is absolutely necessary to retain the services of an attorney, this is typically not the case. In instances where complex legal issues arise, such as a motion requesting alimony notwithstanding a prior agreement or prior court order, retaining the services of an attorney up front is always a good strategy. In some cases, retaining the services of an attorney up front and long before a motion is filed could make all the difference. Aside from basic notice requirements set forth in court order, it is not uncommon for various motions and applications to have certain procedural requirements which, if not accomplished, could result in the application being denied. Knowing whether or not a motion or application will be dismissed because a party simply did not comply with the requisite notice requirements can provide strategy advantages to the party seeking the relief. For these reasons, meeting with a family law attorney well before any motion or application has been filed is not typically a bad idea. Unlike notice requirements applicable to most motions and applications, the procedural requirements for filing emergent applications are often severely truncated. As such, an attorney may be required to have an interlocutory (preliminary) hearing on the first date the matter is listed and be prepared to provide testimony if the judge permits same. Put in plain terms, the lawyer must be prepared to argue as though a trial occurred on the first day the matter is listed. This is especially true in cases involving emergent applications where children are involved. Given what is at stake , having quality legal representation on your side is virtually essential. The cost of retaining legal representation at these early critical junctions pales in comparison to the consequences of proceeding without such representation. Even in low conflict divorce and family law matters where litigation may be avoided largely through amicable negotiation but, for the fact that certain issues cannot be advanced without judicial intervention, consulting with an experienced attorney early and often may prove most beneficial. Even though issues frequently settle by agreement or by way of mediation, meeting with a family law attorney prior to the filing of a complaint for divorce could be helpful in putting forth a strategy for managing the case, its issues and the likely cost (both emotionally and financially). A consultation allows the attorney to understand the parties’ positions as to the above and counsel them as to how to best attain the relief requested, whether by way of application (when needed) or via an agreement. In all cases, a strategy is established and gameplayed to understand the parties’ bottom lines which often leads to amicable resolution and settlement. Moreover, in cases where custody and parenting time is likely to be an issue, having an attuned legal representative on your side assists greatly in positioning you ahead of the game, so to speak. Even where the other party is initially difficult to deal with, "playing nice" at least initially allows the attorney on the other side to counsel their client when it is in their best interest to settle and reassess the applicable issues. In many cases, emotional positions and lack of representation serve to create unnecessary litigation on both sides. However, once you have representation, the situation could change quickly as to how the case is handled and what issues are pursued. The costs, financial and emotional, of not consulting with a family law attorney may be far greater than any costs associated with consulting and/or hiring same.