A Motion is an application to the Court seeking pre- or post-judgment relief to modify prior Orders, enforce prior Orders or for entirely new Orders. A litigant may file a Motion or defend against a Motion. A litigant on either side should understand the Court Rules regarding Motions. For family law cases, many of the Court Rules can be found in Section V of the New Jersey Court Rules.
Time Frame for Filing a Motion
All Motions in Family Court are 24-day Motions. See R. 5:5-4(C). Under this Rule, the Notice of Motion must be served on the adversary and filed with the Court at least twenty-four days before the scheduled hearing date. Because Motion hearing days are scheduled every other Friday (some counties have hearings every Friday), the notice of Motion must always be filed and served on the Tuesday, 24 days before the hearing date. The Notice of Cross-Motion (or the opposition) must be served and filed fifteen days before the hearing date, which will always be a Thursday. The reply to the cross-motion or opposition must be served and filed on the Thursday, eight days before the hearing date.
Notice of Motion
The Notice of Motion is a request for a specific Court Order. Every Notice of Motion must be accompanied by a Certification under oath setting forth facts relevant to your request.
Your certification must be persuasive, but not emotional. The judge is interested in the facts, not how you feel about your adversary. Your certification should tell the judge exactly what you want and why you should get it.
Types of Motions
Pendente Lite Motions
Pendente Lite Motions are motions filed prior to an entry of a judgment in a case. The general rule for a pendente lite application is that the Court should maintain the family's status quo, if possible. The Orders generated from a pendente lite motions are temporary Orders until the Judgment of Divorce is entered.
A typical Motion will request the following relief: a) temporary support; b) enforcement of orders for support or parenting time; c) request for compliance with discovery, such as compelling more specific answers to interrogatories (questions served on adverse party) and non-compliance with production of documents; d) request for counsel fees; and e) parenting rights such as visitation.
You should be aware that if you ask for and receive unallocated support, the support will be treated as alimony and is fully deductible by the payor and fully taxable to the payee.
Motions for Reconsideration
Whenever you believe that an Order entered by the Court is unfair or the judge misunderstood important facts or misapplied the law, or new facts emerged, a Motion for Reconsideration may be appropriate. The Motion for Reconsideration must be filed with the Court and served on the adversary within 20 days of your receipt of the Order.
Post Judgment Motions
The reasons that Motions are filed in Family Court are almost unlimited. The following is a list of typical Motions one might see during and after a divorce:
Modification of Child Support/Alimony
Custody and Parenting Time
Resumption of Maiden Name
Assumption of Any Surname
Termination of Child Support/Alimony
Enforce provisions of Court Order or Judgments
If you need guidance on any of the above Motions, contact one of our family law attorneys to schedule an appointment. Call 1.855.WILENTZ.
The family law team at Wilentz, Goldman & Spitzer serves New Jersey clients in Atlantic County, Bergen County, Burlington County, Essex County, Hudson County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, and Union County, in addition to serving clients in New York City.