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Motion Practice In Today’s Court – What You Really Need To Know

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.


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