4/10/2018

What is a Motion?

A Motion is an application you file with the Family Court to seek a specific form of relief. There are many different types of relief you can seek in your Motion. The most common Motions are for an increase/decrease in alimony, increase/decrease in child support, reimbursement of your children’s expenses, or a modification of custody or parenting time. Although these are the most common types of Motions, there are countless other types of relief you can seek as well.

When can a Motion be Filed?

A Motion can be filed with the Court at any time. However, the “return date” of your motion will depend on when you file it. A return date is the day you appear in Court before a Judge for Oral Argument. Oral Argument is when you explain to the Judge why the relief you seek in your Motion should be granted. Sometimes, instead of appearing before the Judge for Oral Argument, a Judge will make a decision “on the papers.” If this happens, you will not need to appear in Court. The Judge will send you a Court Order with a Statement of Reasons explaining why he/she made the decisions in the Order.

The earliest you will receive a return date after you file a Motion is 24 days. Return dates for Motions are held every other Friday. In some counties, return dates are every Friday. Holidays may effect this schedule. In order a return date as soon as possible, it is important you filed your Motion no later than the Tuesday that is 24 days prior to the Friday return date. The opposing party must have also been “properly served” with a copy of the Motion no later than that day. “Proper service” is providing the opposing party with the Motion by regular and certified mail or by personal service.

Once the Motion has been filed, the opposing party will have to file a response fifteen days prior to the return date. The opposing party can either file a Cross-Motion or an Opposition to your Motion. A Cross-Motion is when the other party seeks certain forms of relief from the Court as well. An Opposition is when the other party just responds to the requests in the initial Motion. Thereafter, you will have a chance to file a response to the Cross-Motion or Opposition. This must be filed with the Court eight days prior to the return date.

What Forms Should be Included in Your Motion?

When you file a Motion, there is certain paperwork that must be included. If not, the Court will reject your Motion. You will then receive a deficiency notice. The deficiency notice will tell you what you are missing.  

The following are four mandatory parts of a Motion:

1.  Notice of Motion:

This is where you set forth exactly what you are requesting the Judge to Order. Remember to be as specific as possible. If you are seeking multiple forms of relief, each request should be separately listed. Judges read at least 20 Motions every motion cycle, so having a Notice of Motion prepares them for what to look for in your Certification.

2.  Certification:

A Certification is a detailed explanation to the Judge as to why he/she should grant the relief you are requesting. Your Certification should be detailed, concise, and to the point. It can’t be longer than 15 pages. If you are filing a Cross-Motion, it can’t be longer than 25 pages. Your Certification should include all relevant documents that support your requests. For example, if you are requesting reimbursement for expenses, you must provide proof of payment of the expense and proof that you requested payment from the other party. If you are asking for a modification of any support, you must also file a “Case Information Statement.” Your Reply Certification cannot exceed 10 pages in length.

3.  Proposed Form of Order:

This is a draft Order that you prepare that grants all the relief you requested. However, it is very rare the Judge will sign the Order as it. Most of the time, the Judge will mark up the Order (usually writing directly on the proposed Order) to make it conform with his/her decision.

4.  Notice to Litigants:

This is a document that provides the time frame the other party has to respond to your Motion. It also advises that any response must be made in writing.

Prior to filing a Motion, make sure to consult with an attorney as there are certain documents that you may be required to attached to your Motion in order for the relief you seek to be granted. The attorneys at Ruvolo Law Group can help you determine whether you should file motion and ensure that it is properly prepared with all of the necessary documents.

Authored by Michelle A. Levin, Esq.