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Filing a Motion

Divorce Dictionary

A motion is a request made of a judge while an action is pending or at trial. Motions can be made in writing for the court to consider, or orally, such as at trial. In matrimonial cases, motions are typically made for temporary support, temporary custody, visitation rights, or to enjoin someone from taking money or property. A “motion” may also be called an “order to show cause,” if it's brought under emergency circumstances where the court must act quickly to resolve the issue.

Sometimes you cannot wait until the trial to re-solve certain conflicts, and your attorney will have to make a request, usually in writing, for a court ruling on a matter within a period of days (a motion) or on an emergency basis (an order to show cause). If you want to obtain immediate, temporary support until the trial commences, temporary custody of the children, a visitation schedule, lawyer's fees, expert's fees, or any other temporary relief, these are the tools to use—although costly.

Filing a motion is like a tennis game, except paperwork—instead of a ball—flies back and forth. Say your spouse has stopped paying the mortgage on the marital residence. He has moved out, and he thinks you should pay for it because you're living there, but you don't want to use up your limited savings. It's been four months since he last paid the mortgage, and you're getting nasty letters from the bank. What do you do? Your lawyer will probably draft a motion asking the judge to immediately order your spouse to pay the back due mortgage and continue to make monthly payments. The motion will include your sworn statement, explaining that the mortgage has not been paid. Your lawyer will probably include the bank letters you've received as exhibits for the judge to see. Once your paperwork is completed, your lawyer sends a copy of the papers to your spouse's lawyer before giving the motion to the judge.

If you do not have an attorney, try to get help with the protocol for writing a motion from the court clerk. Many jurisdictions now provide plentiful help with such issues for pro se litigants in family court. There are even forms for common requests of the court. Some states make the forms available for download from their websites.

Divorce Dictionary

A cross-motion is a counter request made of a judge in reaction to a motion made by the opposing party.

After you or your attorney files the motion, your spouse or spouse's attorney has the chance to answer. The answer will be in the form of a sworn, signed statement opposing your motion. Maybe your husband will say he gave you the money to pay the mortgage each month, but you spent it on a vacation. He might include canceled checks as exhibits. If he wants additional relief, such as an order directing you to pay the utilities on the house, he can ask for that as well. That's called a cross-motion.

If he has a lawyer, the lawyer will take care of it. If he does not have an attorney, he will be drafting the cross-motion himself, probably with the help of a court clerk.

You then have the chance to respond to both his response to your motion—maybe those checks were used for food—and his cross-motion. Some states will allow him to respond to your response to the counter-motion. All the paperwork eventually goes to the judge, who makes a decision. Expect the process to be limited to the movant's application, the cross-movant's response, and the movant's reply—anything more requires special permission from the court.

In some jurisdictions, even with all this paperwork, you or your attorneys still must appear in court to present oral arguments to the judge. This is just the type of legal ping-pong that runs the meter up on legal fees. You can well imagine that by the time all is said and done, the person paying a full-service attorney could have taken a trip to the U.S. Open instead of paying legal fees in his or her own tennis match.

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Excerpted from The Complete Idiot's Guide to Surviving Divorce © 2002 by BookEnds, LLC. All rights reserved including the right of reproduction in whole or in part in any form. Used by arrangement with Alpha Books, a member of Penguin Group (USA) Inc.

To order this book visit the Idiot's Guide web site or call 1-800-253-6476.


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