Bringing a Motion Forward
As all lawyers can attest, taking steps in court takes time. Therefore, if you’re going through a divorce, you may want to ask a judge for a temporary decision on time-sensitive issues – before the outcome of your case is reached.
This is called bringing a motion and may sometimes be brought on an urgent, or emergency, basis.
For example, you might ask the judge for a temporary order that answers: where your children will live and how much time they will spend with each parent during divorce proceedings. Another common request is for interim or temporary support payments.
Types of Motions
Emergency/Urgent Motion
In some situations, you may need an order from the court immediately. This may occur, for example, if your ex-partner has the children and tells you he is taking them out of the country, or you have an immediate and serious concern for your safety or the safety of your children.
If this is the case, you may be able to get what is called an ex parte (without notice) order from the court.
Unlike every other process in family court, when you bring an emergency motion without notice, your ex-partner will not be served with your documents before the motion is considered by a judge.
A judge will review the material and decide whether to grant the order you have requested.
Procedural, Uncomplicated, or Unopposed Motion
In cases where you and the other party agree, you can ask the court to put your agreement in a court order.
When you ask the court for an order on consent, you must attach the consent (or any minutes of settlement that all parties have signed) to your Form 14B: Motion form. These are also known as basket or over the counter motions.
In these circumstances, you should also include a draft order that includes the terms that you are seeking, for the judge to sign.
In most cases where all parties consent to the order to be made, the parties do not need to appear in person before the judge. A court clerk will simply present the documents you have filed to a judge.
Temporary Orders
It is the court’s expectation (in most cases) that there will be some temporary agreement for child support and contact.
Therefore, you are encouraged to come to court ready to discuss the child support and custody and access arrangements that you will agree to (at least temporarily).
This will help avoid the need for you to bring a motion for temporary relief.
Timing of Motions
In most cases, you must attend at least one case conference to discuss the issues in your case before you are allowed to bring a motion for a temporary order on those issues.
There are very limited exceptions to bringing a motion before a case conference, including:
- urgency (i.e., where you or your child’s safety is at immediate risk)
- hardship (i.e., where a support order is necessary to provide basic living conditions)
You should think carefully before you bring a motion for a temporary order before a conference as there may be cost consequences for bringing the motion without sufficient grounds.
After your case is pleaded, the judge will make a decision. Often, the unsuccessful party will need to pay a certain amount for the legal costs of the winning party.
Conclusion
Many types of motions can be brought before a judge and it is important to know which is most appropriate for your specific situation.
If you are interested in learning more about how to bring a motion forward and the different types of options available please contact us now.
This blog is made available by the law firm publisher, Epstein & Associates, for educational purposes. It provides general information and a general understanding of the law but does not provide specific legal advice. Any specific questions about your legal concerns please contact us now and speak to an expert today.