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Pre-Trial Written Motions in Divorce Cases
Any time before or during trial, either side may make a motion. For purposes of this article, only pre trial written motions will be discussed.
A motion is defined as a request for an order from the court, prior to the conclusion of the case. (Motions are available after trial as well, but those are beyond the scope of this article). Pre trial orders are sometimes necessary to compel a party to a lawsuit to do something. In a divorce, some of the more common pre trial motion are:
These are only examples of common motions, and a motion can request virtually any non-frivolous relief. Note that the term "pendente lite" is often used instead of temporary.
There are two ways to file a motion, by Notice of Motion, or by Order to Show Cause, and either party can file either type.
Notice of Motion
Motions brought by notice of motion will generally consist of 3 sets of papers, the Notice of Motion, file by the moving party, the affirmation in opposition, field by the party opposing the motion, and the reply, filed by the moving party. Each of these are discussed below.
A motion made by notice of motion generally consists of:
At least 8 days notice is required, with an additional 5 days if the motion is served by mail.
The party opposing the motion prepares a set of papers called an affirmation in opposition, which consists of the party's sworn affidavit, and an attorney's affirmation, and any necessary exhibits.
The moving party then files a reply, which responds to the affirmation in opposition.
Order to Show Cause
An order to show cause is similar to a notice of motion, in that it can request the exact same relief as a notice of motion. It differs in that the party bringing the motion by order to show cause can submit the motion to the court before the motion is served on the other side. This is generally the only way one side can communicate with the court without the other side being present. In addition, an order to show cause can request that the court issue an temporary order before the other side responds. Order to show cause is often used when time is critical, such as when a child is in danger of being removed from the jurisdiction, or when a decision is needed faster than a notice of motion, such as temporary child support or temporary maintenance.
Motions brought by order to show cause will generally consist of two sets of papers, the order to show cause, filed by the moving party, and the affirmation in opposition, filed by the party opposing the motion. Each of these are discussed below.
A motion made by order to show cause generally consists of:
The party opposing the motion will generally prepare a set of papers called an affirmation in opposition, which consists of the party's sworn affidavit, and an attorney's affirmation, and any necessary exhibits.
Deciding the Motion
Upon the submission of all papers, the court will make a decision, and issue an order in response to the motion. Some courts will require oral argument, but many courts will decide the motion based upon the papers alone. (This is called "on submission") The court can grant the motion in its entirety, deny it in its entirety, or grant some but not all of the relief requested.
Note: An affidavit locks that party into testimony, and any affidavits made for a motion are often used by opposing counsel during cross examination at trial. The decision what to include in a supporting affidavit, and what to leave out, is an art in itself, and should be made by the attorney representing the party.
In order to qualify for a New York uncontested, "no-fault" divorce, both parties must agree to the divorce, division of all marital assets, debts, property, custody of the minor children, support for the minor children and spousal maintenance. In an uncontested divorce, the defendant can be served but if he or she does not answer the complaint in divorce then the plaintiff can seek a default judgment in divorce. The defendant can also waive his or her right to answer the complaint.
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