What can be done once you have filed for divorce, but your spouse is not cooperating with something significant and so you need some type of help from a judge?
You prepare and file what is known as a motion.
What is a motion?
A motion is simply a request of a judge for something.
Said slightly differently, a motion is a request from somebody who is going through a divorce for help from a judge.
Family Court motions are simply formal sets of paper, prepared by a lawyer on behalf of a client, that ask the judge for help with one or perhaps many potentially different issues, including financial issues, child related issues, issues related to insurances, issues related to property, and a whole host of other issues that must be resolved.
So when my client needs help, I, as their lawyer, cannot simply pick up the phone and call the judge. The judge usually will not take a lawyer's call.
Similarly, I cannot write a letter to the judge, because the judge usually will not answer a lawyer's letter.
Obviously, then, texts or emails are definitely out the window; they are not going to work either.
There is a format, a certain set of rules, that governs what a lawyer has to do on behalf of his client to try to get that client help in Divorce Court.
Those rules comprise what we know as a motion.
So, a motion is a request of a judge for something, or a whole list of somethings.
Now, there are all types of motions.
With parents who have young children, for example, one of them may file a motion for custody or a motion for parenting time or visitation. They may also file a motion seeking a court order allowing the father, for example, to spend Christmas Eve with the children, and for the mother to spend Christmas Day with them.
Some financial examples might be filing a motion seeking child support, and certainly in a marriage where one spouse earns significantly more money than the other spouse, we would consider filing a motion seeking alimony.
In order to file a motion, we need to prepare three basic documents:
First, we need a Notice of Motion. This is the document that lists exactly what we are asking the judge to order, briefly but thoroughly.
The second document is the Certification of the client. The Certification is your sworn statement as to exactly what's happening and why you want the relief that we are seeking in the notice of motion.
Additional certifications from other "witnesses" can sometimes be helpful as well.
The third document is the Case Information Statement. This important document is basically your family budget. It shows the judge exactly what the finances look like. What are the expenses? What are the debts? What are the assets? How much does he earn? How much does she earn? What does he do? What does she do? What do the tax returns look like?
Tax returns, current pay stubs, and other important financial documents are all attached to the Case Information Statement so that once it is presented to the judge, the judge has an idea of what the financial picture of this family looks like.
In motions that deal with more complex issues, I will sometimes prepare a legal brief focusing on the particular laws that I believe support my client's motion in an effort to help the judge come to the conclusion that I am asking her to arrive at.
The other side will then file a cross-motion with similar papers.
We then have an opportunity to reply to the other side's cross-motion with your Reply Certification.
I use an Oreo cookie analogy to help explain the concept of NJ Divorce Court motions to my clients in a way that I hope will stick with them. It goes like this:
There are three sets of papers filed in a typical motion. The person who files a motion also gets to file a reply certification to whatever cross-motion is ultimately filed by the other side.
In that way, the person who files first essentially has the two black cookies of the Oreo cookie, forcing the person who files second into the middle, like the sugary cream in the middle of an Oreo cookie.
I like the idea of being able to "sandwich" the other side into the middle of my argument. Sometimes the person who files the first motion often has more control than the person who replies for this very reason, because the person who files first also gets the last word, and therefore, all other things being equal, often has the best shot of being able to convince the Court as to the merits of his case as a result.
Ultimately, the judge schedules the case for oral argument, which occurs on a Friday, when both lawyers come to Court and fight it out based upon what is in their previously-submitted documents.
However, a day or two before the scheduled oral argument, many Judges will circulate their tentative decision. Both sides are instructed to read the tentative decision carefully. It is usually well thought-out by the judge and conclusively written.
Thus, before parties decide to pay their lawyers to go to court to argue the motion orally before the judge, they are often given an opportunity to read what the judge thinks about the case in the judge's tentative decision.
Changing a judge's mind is often not easy and so we can sometimes avoid the need for paying for my appearance in court if we find the tentative decision to be acceptable.
However, if the tentative decision is not acceptable to both sides, then the oral argument will go forward in court. If a lawyer is particularly persuasive in court, he may be able to change a judge's tentative decision.
The judge then decides all issues presented to the Court in the motion and the cross-motion in a written document called a "Court Order," or often just an "Order."
That Order is enforceable by the Court.
Here are 7 important exerpts from Rule 5:5-4 that apply to every NJ Divorce Court motion:
1. The Court ordinarily grants requests for oral argument on substantive and non-routine discovery motions and ordinarily denies requests for oral argument on calendar and routine discovery motions.
2. When a motion is filed for enforcement or modification of a prior order, a copy of the order sought to be enforced or modified must be attached to the motion papers.
3. When a motion is filed to establish alimony or child support, the pleadings filed in support of, or in opposition to the motion, shall include a copy of a current Case Information Statement.
4. In the event a motion is filed to modify an obligation for alimony or child support based on changed circumstances, the person filing the motion must attach copies of her current Case Information Statement and her Case Information Statement previously filed in connection with the order sought to be modified.
5. All initial certifications in support of a motion may not exceed a total of fifteen pages. All certifications in opposition to a motion may not exceed a total of twenty-five pages. All reply certifications to opposing pleadings may not exceed a total of ten pages.
6. A notice of motion must be served not later than 24 days before the time specified for the Court date. For example, a motion must be served and filed on the Tuesday for a motion date falling on a Friday 24 days later. Any opposing cross-motion shall be served not later than 15 days before the return date. For example, a response must be served and filed on a Thursday for a motion date falling on a Friday 15 days later. Answers or responses to any opposing affidavits and cross-motions shall be served and filed not later than 8 days before the return date. For example, such papers would have to be served and filed on a Thursday for a motion date falling on the Friday of the following week.
7. Two copies of all motions, cross-motions, certifications, and briefs shall be served.
Now, what happens if you cannot wait 3-1/2 weeks or more for your motion to be decided by the Judge? What if you need immediate help from a Judge?
If the matter is truly emergent and you cannot wait 24 or more days, then we can apply to the Court for an "Order to Show Cause" immediately.
However, we must be prepared to explain to the Court why we feel that the matter is so emergent that it cannot wait to heard as a regular motion. Judges are very busy and their schedules are prepared months in advance. An Order to Show Cause wreaks havoc on that schedule.
Thus, Orders to Show Cause will only be considered in truly emergent circumstances where we can prove that if the Court does not hear our issue immediately that you or a child will likely suffer immediate and irreparable harm.
The bottom line is that if you need help from a judge, help your divorce lawyer prepare a motion carefully and completely.
KNOWLEDGE IS INDEED POWER WHEN IT COMES TO YOUR DIVORCE CASE.
The more you learn, the better you will be able to partner with your divorce lawyer to make certain that you obtain the best results possible.
This website contains a free "NJ Divorce Course" containing 14 lessons with a total of 85 articles, all designed to help empower you as you grapple with the issues in your divorce.
In fact, this article on NJ Divorce Court Motions comes directly from my divorce course.
If this article was helpful to you, then there is much more material where this came from that is available to you right now.
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Steven J. Kaplan, Esq.