What is a Motion in Family Court?
When a motion is filed, it indicates that one party wants the court to order the other party to do or not do something. This is generally done to seek relief from the court against the other party. It is important to understand that a motion is not a complaint and therefore does not ask for a judgment.
There are many reasons why a party would file a motion with the court. In divorce litigation, motions are frequently filed when there is a dispute about child support, spousal maintenance, property division, to modify/increase/decrease support, to get a protection order, to stop an attachment order and even to seek a stay of enforcement from the judgment.
The actual motion asks for relief from the court . For example, in a motion to modify child support, a party will ask the court to issue an order increasing/decreasing support. The party will typically be required to explain to the court the reasons for the request. The relief requested should be specific in what the party is asking the court to do.
Any motion filed in the family court system must be served on the other party. A proof of service must be filed along with the motion with the court. The opposing party will then have the opportunity to respond to motion, called a surcharge. The surcharge must also be served on the other party. After the surcharge is filed, the court will set either a motion hearing, an evidentiary hearing or a trial date.
Actions after You get a Motion
It is much more common than one thinks that there are disagreements in divorce or child custody actions, and at some point, one party may feel as though their needs are not being met. As such, one spouse or parent may "motion" the court: ask the court to decide the issue at hand. At times, the court will hear the motion from one side, and at other times, the court may decide that a hearing is necessary. Regardless, the first thing to do after receiving a motion is to read the motion and understand what the moving spouse or parent is asking for. This may seem like an obvious step, but there are many local rules that dictate how long a party has to respond to a motion. Often, the time starts to run from the date the party "appears" or receives the motion. Overlooking the deadlines can be detrimental to your case, up to the point of even having your case dismissed.
The first rule of thumb is to remain calm. While we know that this is easier said than done at times, failing to do so leads to more mistakes, which usually means more money spent on attorney fees. When you review the motion and understand the context of the situation, it is important to determine whether or not the issue is something important to you, rather than something that would be nice to have. If a motion is filed to ask that the other side be ordered to pay for extracurricular activities for the children, but you will be contributing to the costs regardless, it may not be worth your time and money to file a response; or, you may want to respond just to ensure you have a record of the request on file.
Speak to a Lawyer that Focuses in Family Law
Navigating a family court’s motion process can be a difficult task, especially for individuals who lack experience within the legal system. Consulting with a family law attorney is an excellent option for those who require legal advice and are unfamiliar with the laws that may be applicable to their situation. Not only can a qualified attorney provide you with valuable insight into the legal process, but a family law attorney can also assist with drafting and filing necessary documents, gathering evidence and other related tasks. With the assistance of an experienced attorney, clients are more likely to receive just results and avoid activities that can negatively affect their case.
When selecting a family law attorney, it is important to choose one who has a reputation for providing effective legal guidance and assistance. When it comes to your family law issue, working with a lawyer who is knowledgeable in this area of the law can reduce the amount of time and effort that is required to resolve the matter, potentially resulting in significant cost-savings for the client. In addition, qualified and talented attorneys have been practicing this area of law long enough to develop strategies that have been proven to work. Importantly, the experience that an attorney brings may be utilized to provide clients with the results that they are seeking.
Finally, while it is important to receive legal advice regarding how to respond to a motion, a quality family law attorney can also assist with other legal matters in your life, including divorce and child custody. Having access to a knowledgeable family law attorney at all times is a major benefit for those who have concerns regarding multiple areas of family law.
Collect Supporting Evidence and Documents
After determining the best course of action, the next step in responding to a family law motion in New Jersey is to gather evidence and documentation that will help support your case. The specific evidence you need will depend on the nature of the motion and your proposed response. Your attorney can provide you with a detailed list based on the circumstances of your case. However, there are some common areas to consider when collecting relevant evidence. In the case of child support, items that may be helpful include proof of any previous child support payments, information about health insurance coverage, documentation of any special needs your child may have, proof of any daycare costs, and income information for both parties. You can also present evidence regarding child custody and parenting time, if it is relevant to the requested change. Other documentation that could be helpful on occasion includes proof of loss of employment, due to either voluntary or involuntary termination; receipts for childcare or tuition costs; records demonstrating you have found a new, stable job; and a summary of what you can offer your child to maximize their wellbeing. Organizing your evidence is an important part of this process. Make copies of every document, printout, and receipt you’ve collected so you have more than one record of everything. Next, make two organized binders of all the documents, creating an index to make it easy to find specific items later on. Keep one of the copies for your own reference and bring the other one to your attorney to review. If any additional items are needed after this point, your attorney will let you know. Once you have finished gathering evidence to support your response to a motion, you can work with your attorney to begin drafting your reply to be filed with the court.
Write a Response
A written response is often preferable to an oral argument, which is only transcribed and if you did not bring copies of any documentation to support your position, then you will be at a disadvantage. From the moment you are served with a motion, begin taking notes and collecting all documentation that will support your position. As examples: If you made a payment, you need to provide correspondence that includes the date of that payment. If you did not, you need to indicate the reasons why you were unable to do so, or circumstances that prevented you from complying – for example loss of a job, or some unexpected event. If the other party is asking for the return of jewelry, you need any documentation that will show ownership. If you purchased it together, for example. Any receipts, photographs, and other supporting items should be included with your response. The purpose of the hearing during which the judge will hear arguments regarding the issues raised in the motion is for you to make an argument as to why the other party is mistaken. If there is any fault on your part, you will want to accept your responsibility and advocate to the court for leniency but if there is absolutely no fault, you should argue your case to high heaven. Maintain a respectful tone, do not slander or gossip about the other person because it will undermine your position, and could leave up vulnerable to allegations of you speaking poorly of the other person in front of the children. If the other parent has a history of physical or verbal abuse, or neglect, or otherwise, make a note of that in the response. Provide as much detail as possible about each issue, and respond to each demand made in the motion. If the party’s request requires you to do something, they must have also paid the filing fee, but if it does not, you will be required to pay the fee, so remember to cover all bases. Judges generally prefer that both parties attempt to resolve their issues out of the courtroom first, and after that, wholeheartedly refuse the terms of the other party; and, conversely, that you are unable to settle them privately. Knowing this, if you feel that mediation will not be efficacious, and the responding party is somewhat agreeable to ending the marriage and works with you on other issues, think about what the mediation would solve or provide, and try to avoid trial.
File the Response in Court
Once you have prepared a well-thought-out response to a motion filed against you, the next step is filing your response with the court. In family court, you have a limited amount of time to file your response after an initial motion has been brought against you. The one exception is a motion relating to child custody; in that case you have 7 days to respond. For other motions, including financial-related matters, you have 20 days to respond. Missing the deadline can severely handicap your ability to have your voice effectively heard and may even result in a default judgment against you. To file your response within the deadline, figure out when you need to submit it by based on the date of service for the original motion. Check the court’s specific rules for detailed paperwork requirements and acceptable methods of delivery. In most cases, you will need to deliver one copy to the court and one copy to the opposing party. In some jurisdictions , you may also be required to deliver a copy to your attorney. In the event that you cannot get a copy of the motion from the opposing party or attorney, you can contact the family court to request a copy. A court clerk may require you to pay a small fee for the copy. Make sure your response follows the correct formatting requirements, which can vary by jurisdiction. This typically includes single or double spacing, page numbers, and using 10- or 12-point font. Your response will likely need to number and address the issues in the same order as the original motion, so create a point-by-point response numbered in the same way as the original motion. Depending on jurisdiction, you may want to have your family court attorney or another lawyer review your response before submitting it to the court. They can help ensure you have covered every important topic and that it is well-organized and clearly written.
Educate Yourself on the Hearing Process
To effectively respond to a motion, you need to be fully prepared for the court hearing. Knowing that you should attend court may automatically increase your anxiety. However, with preparation and practice, you can stay calm and focused on your purpose at the hearing.
Prepare for your motion hearing by writing out your oral argument. You want to be able to explain your position to the judge in a clear and concise manner. That means practice is essential. Speak your oral argument aloud as many times as necessary until you are comfortable delivering it in court. This will also help you remember what you wanted to say. You’ll be less likely to get flustered in court and forget your oral argument.
When you’re presenting evidence at a hearing, make sure the evidence is relevant to the relief you requested within your motion. If the evidence before the court does not support your motion, then you are unlikely to get what you asked for. The judge has to decide the merits of each side based on the evidence. So why would the judge choose to believe you and disregard the evidence that doesn’t support your case?
When presenting evidence to the judge, you must make sure you get the evidence formally introduced and identified as evidence in the record. You can ask witnesses to identify the evidence and describe it in detail. Then, you would ask the judge to admit the evidence. Unless the opposing party has an objection (and a good one), the judge will admit the evidence.
In all instances, you should maintain the necessary courtroom etiquette. Remember to address the judge as, "Your Honor" and respond to all questions accordingly. Some motions have specific requirements for testimony. For example, responding to a motion to modify child support requires testifying about your income and changes in financial circumstances. Testify truthfully about the facts. If you don’t know the answer to a question, simply say, "I do not know." Do not back up a statement with hearsay information. Remember, you cannot testify about a conversation someone else had outside of court. You can only testify about what you saw and heard in the courtroom.
Review the potential Outcomes
The decision of the judge on the final order after a hearing is only one of three possible outcomes in a motion proceeding. If the motion is granted in full or in part, then the judge will either enter an order on the motion right there at the hearing or will do so later in writing and mail it to the parties. Usually, the judge will ask if anyone wants any time to review the order for errors of law or fact before it is entered. If parties ask for time to review, the order will be held until a later date, usually not more than 10 days or two weeks depending on the complexity of the issues.
If the motion is not granted, then the judge will decide whether to issue an order denying the motion right away or later in writing or simply deny the motion by not issuing an order, thereby implying the motion was denied. As noted above, most often when a motion is not granted, the judge does not later issue an order. The party bringing the motion may need to bring it up again at a future date. However, nothing prevents a party from making a similar motion to court at some future date, even if the motion was previously denied.
On the other hand, if a motion is granted in full, the order is usually entered right away. If any part of the motion is granted or denied, then the judge usually enters an order on the part that is granted or denied and warns the parties that he or she has done so and that the remaining issues are still going to require litigation. The judge may also distinguish between issues that are resolved and those that are not, which will help take up less time clarifying why the judge did not grant specific requests.
Key Suggestions for a Solid Response
Welcome to the next installment of my blog series "10 Effective Strategies to Respond to a Motion in Family Court". Here’s the last part of the series – Tips for a Successful Response. As with the other parts of the series – my hope is that this information is useful whether or not you are a lawyer and especially if you are "solo" or self-represented.
If after you read all ten parts of the series, you feel that you could use some help handling your case, please consider reaching out to your family law lawyer to see what they can do to help you to respond to a motion in family court. I have also created a free pdf download of all the postings at once for ease of availability.
- Put together a "Great Moments" files or folder to save compliments or positive information you receive from the other parent or others about the child or children that you are co-parenting.
- Keep a notebook or digital repository (on your phone, computer or tablet) of your victories in your family law case.
- Don’t put down everything negative you ever experience with the other party or the child or children in your family law action into one submission. Any seasoned family law lawyer will tell you – it comes off as "Bitter". Trust me – we’ve seen it before. Instead, be selective and pull out only the pertinent points that relate to the order you are responding to be heard on.
- Be selective in your language. I encourage many family law lawyers in Toronto to limit themselves to the use of the words "you" and "me" in their correspondence. Again, this comes off so much more polite and respectful than when you use the word "I"; especially in situations where you are also sharing how you feel about the conduct of the other parent.
- Try and limit yourself to one submission per family law case. It is not that party "A" or party "B" needs to see everything that party "A" or party "B" has done wrong up until that point in the family law court file . If you are responding to a motion in writing there is already the opportunity for the presiding judge to hear about the back and forth between the parties on the issues in the court file from the point of view of both parents.
- Put together a transcript book with relevant case law, forms, notes and articles that will help your Toronto family law lawyer make the best possible argument for your case. If a party is going to go to the extent of bringing a motion in court – they should also be doing the necessary work to ensure that their submissions are as strong as it possibly can be.
- Listen to your lawyer. If your Toronto family law lawyer is telling you that they will be requesting something other than what you were hoping for in order to protect your children – listen to them. Part of our job is to explain to our clients what can happen at court.
- Go into court with an open mind. Just because you might want something, doesn’t mean that the court will agree with you. The Family Responsibility Office and the Family Courts in Toronto will and do necessarily put the safety of the child or children above everything else. Whether you like what the other party might be requesting in their materials sometimes doesn’t matter – at least sometimes. Keep that in mind.
- Focus on what matters to you. The reality is that the judges don’t care about the little stuff, the allegations of the minute offences, the little digs that you exchange with your ex. They care about what affects the children in your family law action. Focus on something that matters to you.
- Know that you have done everything that you can do to make your submissions to the court. You showed respect, restraint, and fortitude. You behaved like an adult in court. You have done everything that you can do to put your best foot forward in your family law court case.