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You might be asking yourself what exactly is motion practice in a New Jersey divorce or family law matter?  

Motion practice is generally used by a party to the action in seeking specific relief from the Court or for the Court to make a ruling on a contested issue in your case.  

As the moving party, your attorney will prepare a set of papers on your behalf in the format required by the Court Rules, which in basic terms consists of your “laundry list” of relief requested (known as a Notice of Motion) together with a supporting statement (known as a Client Certification) signed by you, the moving party. In your certification, you will explain to the Court why you are seeking certain relief and how you propose the Court to rule on those requests for relief.  You will also attach supporting documentation or exhibits to your motion papers which serve as your “proofs.” In most instances, a letter brief or brief is necessary.

When your motion is filed with the Court, it will be served on the non-moving party, and they will have an opportunity to respond in writing (known as Opposition).  Chances are, the non-moving party will also file what is known as a Cross Motion, where they will seek specific relief from the Court in addition to responding to your motion.  

The last part of motion practice prior to oral argument in Court, is the filing of a Reply Certification to the Cross Motion.  At this stage, as the moving party, you would be responding in writing to the Cross Motion and reiterating some of your main points from the motion.  In essence, as the moving party, you will get the last written word.  

The “return date” of the motion is when oral argument takes place in Court.  Your attorney, if you have one, will argue your main points, but will not regurgitate everything in your motion papers.  The Judge may also ask any questions.  

After this, the Court will enter an Order.  You should know that attorneys do not control the Court, and there is no way to know if an Order will be sent out that day or take several weeks or more.  This all depends on how busy the Court is.  Again, due to backlog, there are likely decisions and Orders outstanding on cases prior to your motion that will have to be entered first. You must be patient when waiting for a Court to enter an Order.

It is vitally important that your attorney be at least somewhat familiar with how the Judge assigned to your case handles motions and how they have typically decided similar issues in other cases.  While no one can predict the outcome in Court and considering that every case is factually unique, having the proper “voice” for the audience you are writing to and presenting the arguments in a certain manner, are all key in setting yourself up for possible success.  This does not mean that you will win every issue in a motion, and you should keep in mind that Courts strive to be fair to both litigants in entering Orders.  

These days, Courts are understandably overwhelmed with the number of new cases filed and those already pending, which includes motion practice.  The numbers are staggering.  This increase in backlog is still due to previous shutdowns during COVID-19, and in most instances, a shortage of judges on the bench to handle the volume. You must consider the Court’s workload when deciding to file a motion and first thoroughly explore all possible avenues of alternative dispute resolution, such as mediation.  Chances are that even after the Court hears the motion in oral argument, the litigants will be ordered to attend mediation to try and resolve the issues.

The takeaway here is that motions in Family Court should never be thought of as a do-it-yourself project or something that can be “whipped up” by your attorney on the fly (the exception being emergent applications known as an Order to Show Cause.)  Motions must be carefully thought out and strategized before any paperwork is prepared.  Your certification must be well-written, supported by the proofs, and articulate your requests for relief in a respectful, organized, and straightforward manner. Of course, your filing must not only comport with the Court Rules, but also with New Jersey Family Law.

You should have an in-depth conversation with an experienced New Jersey family law attorney who can assist you in putting your best foot forward when it comes to motion practice.

You may be wondering what happens if you want a divorce, but your spouse refuses to accept that the marriage is over and essentially disappears off the grid when it comes to engaging in the process. What happens if your spouse refuses to accept service of the divorce complaint? What happens if your spouse refuses to address any of the divorce issues with you or your attorney? What if your spouse refuses to get an attorney? These are all questions that are sure to arise if your spouse takes a stonewall approach to make your path of divorce as difficult as possible. 

New Jersey is a no-fault state.  This means that if you meet the jurisdictional requirements for filing a divorce in this state and allege a cause of action in your Complaint for irreconcilable differences (and any other grounds), the divorce matter will proceed.  Your spouse then has the choice to cooperate or not, but either way you will still ultimately be able to be divorced if you follow the necessary steps.

Once a complaint for divorce is filed against your spouse, they will have 35 days to respond to it. If your spouse does not file any kind of responsive pleading (usually an answer and/or counterclaim) after 35 days, a default judgment can be requested within 60 days of the last day they had to respond. 

On a county-by-county basis there are different rules on whether you will need to go to court if your spouse does not respond. If you do have to attend a court proceeding, it will likely be for a default hearing. A default hearing is where the judge will make certain determinations about your divorce matter on issues such as: (1) alimony; (2) child support; (3) child custody; (4) equitable distribution of marital property; and any other relief that may have been requested in your complaint for divorce. 

Judges are often cautious before granting a default divorce. In the interests of justice, the Court wants to ensure that both spouses have had a fair chance to be heard. Courts may even extend or delay proceedings when the spouse who has not responded at all thus far, comes to court with an explanation of why there has been no response and they seek to “cure” the default and be involved in the matter.  A Court will generally permit the defaulting party to get into the case and be heard, but usually requires counsel fees to be paid to the non-defaulting spouse. 

The first step to dealing with these issues is hiring an experience divorce attorney to assist you in navigating the process.  Monmouth County Divorce Attorneys at the Law Office of Sylvia Costantino are here to help.  They are experienced and dedicated to ensuring that the divorce process goes as smoothly as possible.  

Sometimes parents are unable to resolve their custody and parenting time disputes without assistance.  This may be due to substance abuse, domestic violence or even parental alienation, but sometimes it can be for a myriad of other reasons such as failure to effectively communicate or co-parent with one another.  However, before your case breaks down to the point where a trial may be necessary, it is important to do everything you can to try to resolve these important issues by turning to mental health professionals who are trained to assist in such matters.  Moreover, if you do go to trial, you will want expert testimony to assist the court in making important child-related decisions such as custody and/or parenting time.

The first step in any dispute over custody and parenting time is for the litigants to be referred to the Custody and Parenting Time Mediation program at the courthouse.  If this process fails, then Court may then refer the parents to the Custody Neutral Assessment Program. 

A Custody Neutral Assessment, often referred to as a “CNA”, serves a very particular purpose and is a type of alternative-dispute resolution method available at a minimal cost compared to a full custody evaluation.  The CNA was created to assist litigants in gaining insights into important child-related issues that they are unable to resolve between them.  The CNA also helps inform the court on these issues as well. 

It is important to distinguish a CNA from a comprehensive custody evaluation. With a CNA, there is no psychological testing and after one or two meetings with the litigants and likely the child, the mental health professional will simply provide a written recitation of his/her concerns and those of the litigants to the court.  The CNA is meant to provide a “snapshot” of the issues and concerns and does not typically result in a definitive recommendation to the court.  However, this “snapshot” can be helpful to the court in determining the issues or to identify what else is needed to move the case along.

A CNA may recommend to the court that various other steps be taken, i.e. a full custody evaluation, a psychological evaluation of one or both parties, the appointment of a parenting coordinator, anger management therapy, etc.  A CNA can also state that a full custody evaluation be performed. 

A custody evaluation is done by a forensic psychologist who has specialized training.  This is a much more lengthy and expensive process and requires several hours of each parent meeting with the psychologist, including the children.  With a full custody evaluation, there is psychological testing done on both parties, documents submitted, and interviews of the parties with the evaluator.  The evaluator will also likely speak to collateral sources, such as a marriage counselor, grandparent, etc.  A litigant will be asked to sign a release for the evaluator to speak to a collateral source such as a doctor or therapist, as those communications are privileged. The full custody evaluation report is usually very comprehensive and will in most cases result in a recommendation on custody and parenting time.  After all, with the full evaluation the objective is to ascertain which parent should have custody (and given recommendations on parenting time). 

When trying to decide whether to seek a CNA or engage in a full evaluation, consider that the CNA is the more cost-effective option that may provide valuable insights in your case that can lead to a settlement in a much more expedient manner.  There are some cases that cannot be resolved without a full custody and parenting time evaluation, however the benefits of a CNA should not be overlooked as the first step before embarking on further evaluation.

If you have questions about a custody neutral assessment, the attorneys at the Law Offices of Sylvia S. Costantino, Esq., LLC are ready to provide you with compassionate and dedicated legal representation to get you through this trying time.  Schedule a consultation today to come in a speak with an experienced New Jersey divorce and child custody attorney.

Some married couples believe that staying together for the children is the best thing for them. In fact, when it comes to women getting divorced, this seems to be the number one reason they give for staying in a broken marriage.  However, the reality is that this might be more damaging to the children than the divorce itself. So if you staying in a failed marriage, then consider the following:

Constant arguing in the household or even stony silence between parents is more harmful than the divorce itself. Most children will come forward after their parents’ divorce and reveal that they are actually relieved by the divorce. Fighting in front of your children has harmful and lasting effects.  When you are in the midst of fighting with your spouse, take yourself out of the “ring” and actually focus on your child’s reaction to what is going on. Is this what you want your children to think is normal in a relationship?  Remember, parents set the greatest example for their children and the relationships they form later in life.  It is up to you to be cognizant of this at all times during your divorce.  

Children are more intuitive than you probably give them credit for.  They may not articulate like an adult, but rest assured that your pain and unhappiness is impacting them in a big way both before during and after your divorce.  Do not try and hide what is going on because chances are they know something is wrong and life at home is not normal.  Be honest with your children but speak to them on an age appropriate level. They appreciate straightforward answers when questions are asked.  There are many books out there worth reading that address how children interpret and articulate at different stages of their life. 

Even if your child expresses that they are siding with you in the divorce, know that deep down they do not want to feel like the middleman or as ammunition. Bottom line, this is something you should never do. They do not want to take sides or gather information about your spouse at your request. In fact, some divorcing parents take this so far as to engage in outright “parental alienation.” Put yourself in your spouse’s shoes.  Would you want this done to you?

Another big misconception is that you can buy your child’s affection during divorce. Although all children love gifts, if you overdo it especially when there is no special occasion or reason to warrant the gift, it will undoubtedly make them feel uncomfortable. Without a doubt they will sense the real motivation behind your actions.  Don’t fall prey to this common pitfall.

Lastly, keep in mind that children need time to heal just as much as you do.  Life after divorce is an adjustment for them just as much as it is for you. Two homes and two different lifestyles means that children will need time to acclimate and figure it all out at their own speed.  Do not rush the process and engage a child therapist to help if necessary.

After the divorce is all said and done, realize that this is a chance for you to become even closer with your children.  Always put them first, just like you did during happier times. In the end, the transition will go smoother than you may think.  

At the Law Offices of Sylvia S. Costantino, Esq., we are not just divorce lawyers, we care about your family and how the div

When a new client with children walks into our office, one of the first questions he or she will ask is about child support – either how much he or she will have to pay or can expect to receive. In most cases, this question is answered by application of the New Jersey Child Support Guidelines.

A less frequently asked, but equally important question is what child-related expenses do child support payments cover and what child-related expenses must be addressed separately? 

Child support payments which are made in accordance with the New Jersey Child Support Guidelines are meant to cover three categories of the recipient’s household expenses: fixed, variable, and controlled costs.

Fixed expenses are housing-related expenses. They include mortgage payments, rent, real estate taxes, utilities, household furnishings and household care items.

Variable costs are incurred only when the child is with the parent. Variable expenses include food and transportation costs. Controlled costs are those over which the primary caretaker of the child has direct control. This category includes clothing for the child, personal care products, entertainment, lessons, toys, and miscellaneous expenses such as magazines and school supplies.

Controlled costs also include unreimbursed medical expenses for the child up to the $250 per year which are the sole responsibility of the primary caretaker parent. 

Expenses which are not automatically covered by child support but can be added to the Guidelines include the cost of: work-related childcare, health insurance coverage for the children, and predictable and recurring unreimbursed medical expenses for the children over $250 per year.

Common expenses which are not covered by child support and must be allocated separately between the parents are the cost of extra-curricular activities, summer camp, and school tuition. 

If you want to learn more about child support please call our office today at 732-741- 2600 to set up a free initial consultation to learn more about this complex topic.