What is Motion Practice?

What is motion practice?

In the family courts, there are two types of motions: pendente lite motions (filed while the divorce is pending) and post-judgment motions (filed after the parties are divorced or a dissolution of civil union or domestic partnership).
 
Pendente lite motions generally related to interim relief while the parties are trying to resolve issues or while waiting for their trial date.  These motions generally deal with support to the needing spouse and children, restraints against liquidation of assets; custody and parenting time pending divorce, discovery of information and other financial issues. 

Motions are filed 24 days before they are heard by the court.  Each motion should clearly set forth the specific requests made of the filing party, and must support and explain the reasonableness of those requests in a certification.  The certification is a sworn written statement submitted by the party to the court, which contains relevant factual information and exhibits (additional proofs) supporting the assertions made in the certification. 

The date that motions are heard is the "return date" or "date of oral argument." The party opposing a motion must file a response and/or cross-motion to the original motion, no later than 16 days before the return date.  The original filing party must file their response to the opposition and/or cross-motion no later than 8 days before the return date.

Many courts will issue "preliminary rulings" a day or two before the return date.  A preliminary ruling is the court's tentative decision on all requests made by both sides and includes a statement of reasons for each request granted or denied by the Court.   Parties can accept the preliminary ruling in its entirely and not appear for oral argument on the return date. Alternatively, if either party declines to accept the preliminary decision, both parties appear for oral arguments and argue select, or all, requests granted or denied.

Parties need not appear for oral argument on the return date if they are represented by counsel. Parties normally are not permitted to speak at oral argument. Yet, even if represented by attorneys, parties are encouraged to appear with their attorneys on the date of oral argument.  It is helpful to the attorneys and to the Court to have a party next to them at counsel table to verify information. It is also helpful to the party to understand the process and the Court's decisions. Unrepresented parties risk "waiving" their right to oral argument if they do not appear on the return date.  Note that a party must respond in writing to a motion or cross-motion, or the non-responding party will not be heard by the Court at oral argument.

For legal assistance, contact Maleski Eisenhut & Zielinski, LLC at 908-237-9711 or online.