Motion Practice in Today’s Court – What You Really Need to Know

Motion Court

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.

Can You Still Get Divorced with an Uncooperative Spouse?

divorce

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.  

Is There Ever A Right Time To Divorce?

If you have ever thought about divorce, you may also have asked yourself if it will ever feel like the right time for you to venture into those waters, especially post-pandemic. You put off the inevitable and continue on, waiting for that right time to come, and happiness remains out of reach.  You can change that.

Divorce for most is sort of like walking into a store mask-less for the first time since the pandemic.  You feel “undressed” to a certain degree, and even nervous.  Filing for divorce puts you in the same unchartered waters. You are worried about your children, your finances -– well, just about everything!  I want you to know that you are not alone in your fears or hesitancy to take that next step.  The overwhelming majority of folks going through a divorce feel exactly the same way that you do, especially in the beginning. 

As a New Jersey family lawyer, my job is not just to lead you through the divorce process and advise you every step of the way, but also to offer you insights into the nuances that make up the complexity of family law, as well as navigate you through the divorce process.  None of this is easy, but that is what I am here for.  

As my client, I am your advocate.  You will get the benefit of not just my extensive experience as a New Jersey Certified Matrimonial Law Attorney, but also my world experience as a mother of grown children and a spouse for over three decades. I will always ask where you are in your relationship and why you feel it is broken. I want to know who your children are and where they are in their lives.  Not because I am a mental health professional or a marriage counselor, but because I care about my clients and want to assess the best path towards the outcome you desire. It is important to me what challenges lie ahead for your family once you are divorced.  Without paying attention to these details, setting out to achieve your goals and tailoring a settlement to meet your specific needs would feel, well, mask-less to me.  

I invite you to set up your free in-depth consultation today so that we can discuss next steps and the needs of your case.   The next chapter of your life is within reach.

CO-PARENTING IN THE FACE OF A NATIONAL PANDEMIC What You Can Do to Help Your Children

We have been forced by the Coronavirus pandemic to slow down the usual frenetic pace of our everyday lives. Most of us spent the majority of our day outside of the home. Before the pandemic, we would go to work, run our household, raise our families, run errands, socialize, dine out, etc. The only thing that seemed to matter was our daily agenda that grew longer and more complicated. At night, we would finally slow down for a small window of time to be with family and to sleep. Our days went by in a blur, and we have allowed technology to distance us from real human contact. Then, in an instant, the unimaginable changed our lives for an indeterminate amount of time. We are left confused and frightened as control has seemingly slipped through our fingers.  

While we fight this unseen enemy, I implore you to remember the innocent children who need and deserve protection from domestic discord in the home. I believe that this is a fundamental responsibility of all parents, regardless of the status of your marriage or relationship. It should be practiced even under normal conditions, but sadly is not. 

As a divorce attorney, I witness the demise of civility between parents every day. One would think, however, that a national emergency would unite people even if they are no longer partners, and especially if they have children. Instead, I am witnessing a surge in co-parenting issues where children are placed squarely in the middle, even if it is unintentional.  

Remember that even during these frightening times, children are intuitive and advanced beyond their years. Even if you do not argue in their presence, they know what is going on.  They can feel negative energy and respond to it in ways that make sense to them. In nearly every divorce and family law case involving children, there are lasting repercussions for them.  Some of this will be permanent. What can you do to minimize this? Here are my top five tips on co-parenting during the pandemic, whether you are married, separated, or divorced. Not just for now, but every day moving forward:

1. Have a Contingency Plan in Place.  If there are two parents, then you are fortunate to have a built-in backup. If you were to fall ill, the other parent must be ready to take on custody and all child-related responsibilities. Now is not the time to stick to the belief that the other parent is incapable. Therefore, if you feel the need to educate the other parent on child-related issues, then do it, but perhaps in a neutral, non-degrading manner.  If you are receiving the advice, perhaps just listen and try to be objective. Often co-parents clash due to poor listening skills. Remember that you share a common goal: the children and keeping them safe. Keep the flow of communication going even if the other parent is not someone you enjoy talking to.

2. The “Best Interest of the Child” Controls.  This standard is defined “as one that protects the safety, happiness, physical, mental and moral welfare of the child” (citations omitted). Family Court judges are charged with the doctrine of parens patrie, which in Latin means the authority to protect those who cannot protect themselves. This vital principle should be employed by co-parents every day, especially now. If you are a parent at a true impasse with the other parent, take a minute and really think about what you can do to benefit the child instead of focusing on what you want or believe is right.

3. Memorialize Agreements In Writing. It is important to reduce verbal agreements to writing to avoid misunderstandings. For example, include details as to who is tasked with picking up and dropping off the children, at what time, and where. Come up with a mutually agreeable sanitation routine to prevent the spread of the virus between households. Do a run-through to see if your agreement has any gaps. Place all assumptions and expectations in writing and sign it. Your attorney can assist in drafting a consent order that resolves custody, parenting time, and financial issues.  This way both parents are on the same page.  

4. Work on You.  Take shifts caring for children as everyone needs down time, especially now. Disconnect from technology and the news for a few hours each day.  Go to a separate room in your house or outside while practicing any social-distancing requirements. Reconnect with hobbies or exercise. To be the best co-parent you can be, you need to stay grounded, and cultivate your own self-esteem and self-worth.  When you embrace the things that bring you peace and happiness even in difficult times, it naturally has a positive effect on others, especially children.

5. You Still Have Legal Rights. While Courts may have limited access during this national emergency, your legal rights remain intact and can be enforced. For example, even if you are temporarily distanced from your children for safety reasons, you should have reasonable access via Facetime or Skype. Continuous access to one’s children, especially during this trying time is essential. On this and other issues, I can guide you and take decisive steps to protect your rights. Mediation via video conferencing is one effective option that can also be used while social distancing.

In closing, I hope that you and your family stay healthy and safe during these uncertain times. If you have questions, please feel free to email me at ssc@adaptingsocialdemo.com and we can schedule your free virtual strategy session.  My team remains at the ready to assist. You can rely on our experience, dedication and skills to effectively represent all of your family law interests.  Together, we will make it through.

“My Friend Told Me That When She Got Divorced. . . .”


When a divorce attorney hears these words from a client, it is sure to raise a concern.  If you have a friend who previously went through a New Jersey divorce, then naturally they may want to give you the benefit of their experience.  It is completely understandable to want to bond with someone who has already gone through a divorce to try and gain insight into what is an inherently difficult and painful process.  Yet, divorce attorney Sylvia S. Costantino, Esq. cautions that this kind of advice, while well-intended, may serve to confuse, cause unrealistic expectations, or is likely to be incorrect from a legal standpoint.  When listening to advice from someone who has already gone through a divorce, it is vitally important to keep the proper perspective. 

Keep in mind that the facts of your friend’s case are naturally different from the facts in your case. Every family law case is unique and this will have a dramatic impact on possible outcomes. For example, it may be that your friend and her ex-spouse share physical and legal custody of their children, whereas this arrangement may not be right for your case given domestic violence, a substance abuse issue, etc. Moreover, the finances of each family are also unique and the alimony amount and term that resulted in your friend’s case may not be achievable in yours regardless of whether the families’ incomes were similar.
Your case will have a beginning and an end. What happens in-between to achieve your desired goal requires a strategy on the part of both you and your family law attorney. The strategy that your friend or their attorney used, may not work in your case for a myriad of reasons including the fact that your friend (in most instances) is not an attorney, the personalities of all involved are different, and again the facts are different. In fact, trying to inject what your friend told you is an effective strategy can have the opposite effect in yours.
Remember, you retained a divorce attorney to guide you and give you advice. You should take advantage of their expertise and experience. If you have questions, you should ask your attorney and get the answers you need. If you want to articulate a different goal for your case at any time during the process, then you should meet with your attorney to make sure that you are both on the same page.
The attorneys at the Law Offices of Sylvia S. Costantino are experienced and knowledgeable in New Jersey family law and can advise you on what is and is not likely possible in your case based on your unique set of facts and family law. We understand how important your case is to you and your family and we are here to help.

Understanding the Basics of Custody Neutral Assessments

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.

What Children of Divorce Wish Their Parents Knew

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

What Child-Related Expenses Do Child Support Payments Cover?

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.

The information you obtain at this site is not, nor is it intended to be, legal advice. This website is designed to provide general information only, and does not represent the opinions of The Law Offices of Sylvia Costantino, LLC attorneys. The information is not guaranteed to be correct, complete or up to date with recent legal developments, verdicts or settlements. You should consult an attorney for advice regarding your specific facts/circumstances/case. We invite you to contact us and welcome your calls, letters and emails, but note that contacting us alone does not create an attorney-client relationship. If you would like advice regarding your individual situation, you should contact The Law Offices of Sylvia Costantino, LLC. to schedule a consultation to obtain legal advice. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.
 
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