There are numerous reasons to file a motion in divorce case. Some types of motions in divorce cases are temporary custody of minor children, temporary child support, temporary exclusive occupancy of the marital home, among others.
A motion is a request or appeal, which can be written or verbal, for an order of the court before the case ends. Either party can file a motion in a divorce case at any time while the case is open. The parties are called the moving party, which is the person filing the motion, and the opposing party.
File a motion in a divorce case by Notice of Motion. This type of motion usually consists of three sets of papers:
the Notice of Motion, which is filed by the moving party (the party making the motion)
the Affirmation in Opposition, which is filed by the opposing party
the Reply, which is filed by the moving party
Include the following information when preparing the Notice of Motion, as a general rule:
the caption or statement of the case, the court where the motion will be made, the date and time of the motion, and what the motion seeks
the filing party's sworn statement (or affidavit) of the facts of why the motion is necessary or required
the attorney's affirmation or statement of the case
exhibits, if any, to support the motion
File a Notice of Motion with at least eight days' notice. Add five days if the motion is served by mail.
Next, the opposing party prepares an Affirmation in Opposition, a set of papers that includes the opposing party's sworn statement or affidavit, the attorney's affirmation, and exhibits, if relevant.
The final step in filing a Notice of Motion is for the moving party to file a reply to the opposing party's affirmation.
Another option for filing a motion in a divorce case is to file a motion by Order to Show Cause. The Notice of Motion and the Order to Show Cause are similar; however, the Order to Show Cause can be presented to the court before it is served to the opposing party.
An Order to Show Cause is used when the filing party wants to speak to the court without the opposing party present. Use an Order to Show Cause when timing is important such as in judgments related to temporary child support or temporary maintenance.
This type of order usually consists of two sets of papers:
- the Order to Show Cause, filed by the moving party
- the Affirmation by the opposing party, filed by the opposing party
Prepare and file an Order to Show Cause motion in a divorce case includes the following:
the Order to Show Cause, and in this motion, the court will set the return date
the filing party's sworn statement (affidavit) providing the facts of why the motion is required
the attorney's affirmation in support of the motion
if relevant, exhibits to support the motion
Wait for a decision. After the papers are filed, either a Notice of Motion or an Order to Show Cause, the court will generally make a decision, and issue an order responding to the motion. Sometimes the court will require oral arguments, but often courts will decide the motion based solely on the papers that are filed.
- The author is not an attorney and offers no legal advice whatsoever.
- Verbal motions can also be made during a divorce case trial.