You're in the middle of a New Jersey divorce and there's a problem.
Maybe your spouse isn't paying support. Maybe you can't agree on parenting time. Maybe there's a dispute over who should pay a particular expense, maintain insurance, or comply with something the court has already ordered.
You've tried to work it out, but you're getting nowhere. What do you do?
You may need to file a motion.
A motion is a formal request asking a judge to make a decision or enter an order while your divorce case is pending or, in some situations, after the divorce has already been finalized. Your lawyer can't simply call the judge and explain what's happening.
There is a formal process for presenting the issue to the court, giving the other side an opportunity to respond, and asking the judge to decide what should happen. That's what a motion does.
Family Court motions can address many different issues. Depending upon the circumstances, a motion might ask the court to establish or modify child support or alimony, address custody or parenting time, enforce an existing court order, resolve a disagreement involving insurance or expenses, or provide other appropriate relief.
Sometimes a motion involves one issue. Other times several related issues need to be addressed at the same time.
The important question isn't simply, "Can I file a motion?" It's whether court intervention is necessary and whether you have the facts and documentation needed to support what you're asking the judge to do.
The Notice of Motion tells the court and the other party exactly what relief you're requesting. The supporting Certification explains the relevant facts and why you believe the judge should grant that relief. Documents that support your position can be attached when appropriate.
Financial motions may also require a current Case Information Statement, particularly when you're asking the court to establish or modify alimony or child support. Your CIS gives the court important information about income, expenses, assets, liabilities, and the overall financial picture.
Depending upon the complexity of the legal issues, your attorney may also submit a brief explaining the law supporting your position.
This is why preparing a good motion involves much more than telling your lawyer, "My spouse isn't being fair." The court needs facts.
The other side gets an opportunity to respond. They may oppose what you're requesting and, when appropriate, file a cross-motion asking the court for relief of their own. You may then have an opportunity to reply to the arguments raised in response.
New Jersey's Family Court rules establish deadlines for these submissions so that both sides have an opportunity to present their positions before the motion is decided.
This exchange of papers matters. A judge may be reading competing versions of the same events, so your certification should explain what happened clearly and support important factual claims with appropriate documentation whenever possible.
Possibly. New Jersey's rules generally provide for oral argument when properly requested on substantive Family Court motions, although not every motion requires it and the court retains authority over how motions are handled.
If oral argument occurs, the lawyers have an opportunity to address the issues with the judge. The judge may ask questions, clarify facts or legal arguments, and hear the parties' positions before deciding the motion. Ultimately, the court enters an Order stating what has been decided, and the parties are expected to follow it.
Good motion practice starts long before anyone walks into a courtroom. If you're asking the judge to resolve a financial issue, give your lawyer the financial records needed to explain it. If you're claiming that your spouse violated an existing order, provide the order and documentation showing what happened. If the dispute involves communications between you and your spouse, preserve the relevant emails, text messages, or other evidence.
Also, stay focused. A motion isn't an opportunity to tell the judge every bad thing your spouse has done during the marriage. Your papers should give the judge the information necessary to decide the specific issues you're actually asking the court to resolve. Clear facts and useful documentation are much more valuable than pages of anger.
Sometimes people hear "motion" and assume it means an emergency court appearance. Usually, it doesn't. Regular motions follow the court's established filing and response schedule.
If the situation involves immediate harm that cannot wait for the ordinary motion process, a different type of application, commonly called an Order to Show Cause, may be appropriate. But simply believing an issue is extremely important doesn't automatically make it an emergency.
Whether emergent relief is appropriate depends upon the particular circumstances and the type of harm that could occur if the court doesn't act immediately.
Filing a motion can be necessary when an important issue can't be resolved any other way. But court involvement also takes time, costs money, and gives the judge, rather than you and your spouse, the power to decide the issue. That's why I generally want to understand three things before filing: What exactly are we asking for? What evidence do we have to support it? And is there a realistic way to resolve the problem without asking the court to decide it?
Sometimes the answer is that we need the judge's help. When that's the case, your job is to help your lawyer present the clearest and most complete picture possible.
If you're going through a New Jersey divorce and want to understand motions, support, settlement, and the other stages of the process, my free Divorce Smarter Course explains what you should know in straightforward terms.
Until next time,
Steve