New York Divorce Motion Practice FAQ's

What is a Motion?
A motion is an application or request to the Court, to grant interim relief, usually made during the pendency of an action. Sometimes we call them applications for pendente lite relief. This means that you are telling the Court that you cannot wait for this action to come to trial and that you need some assistance from it before trial (such as temporary support, an injunction, an order).

How do I make a motion?
Motions may be brought before the Court in two ways. Motions are brought on by Notice of Motion and Supporting Affidavits, Affirmations and Exhibits or by Order to Show Cause with similar supporting papers. A Order to Show Cause is a notice of motion, which is signed by a judge and then becomes an order.

What is the difference between a notice of motion and order to show cause?

• The main reason for the distinction between a Notice of Motion and an Order to Show Cause is that under the law, the person making the motion must give the other side at least eight days (13 days, if by mail) advance notice of a motion. We give notice of the fact that we are making a motion, by serving a copy of a notice of motion on the other attorney. The notice of motion tells the other attorney the day we are making the motion (called the return day), the papers upon which we will base our request for relief, the Court, the place and time we will be making the motion. The notice must have annexed to it copies of the supporting affidavit, or affidavits, affirmation and exhibits (an Affirmation is a statement made by a lawyer, which doesn't have to be notarized as long as he states it is made under the penalty of perjury).

• If we can't wait eight days to make our motion, or want a temporary restraining order we can make a motion, by submitting to the Court an order to show cause with supporting affidavits, affirmations and exhibits. An Order To Show Cause is a notice of motion which is signed by a judge. It becomes an order after it is signed. The Court has the right, to shorten the return date of the motion, direct the manner in which the motion papers are to be served and even grant interim relief (such as an injunction or a stay) pending the determination of the motion. This is done in the body of the order to show cause which is submitted to the Court for signature.

What right does my spouse have to oppose my motion?
A party who is served with a notice of motion or order to show cause may oppose the request for relief by serving the other attorney with copies of opposing affidavits, affirmations and exhibits, and submitting the originals to the Court (with an affidavit of service) on the return day. Unless the Court orders otherwise, opposing papers may be served on the attorney who made the motion, by mail or personal delivery to his office. Opposing papers are submitted to the Court on or before the return day in the same manner as the motion papers.

If my spouse opposes my motion what can I do?
Sometimes we are permitted to serve Reply Affidavits (or Affirmations) in response to opposing affidavits. Sometimes we are permitted to serve Sur-Reply Affidavits (or Affirmations) in response to reply affidavits. Copies of all of these papers may be served on the other attorney by mail or personal delivery. The originals, containing affidavits of service, are submitted to the Court in the same manner as the motion papers.

If I make a motion can my spouse make a counter-motion?
Yes. A party who is served with motion papers may make a Cross-Motion by serving a copy of a notice of cross-motion and supporting papers upon the moving party at least three days, before the return day of the motion. The same rules apply as to motions and the original notice of cross-motion and supporting papers, with affidavit of service, are filed with the Clerk of the Court.

How are motions determined?
There are several steps:

• When a judge decides a motion, he will either sign an order, which has been prepared and typed by his secretary, or write a Decision. If he writes a decision, it will say at the end "submit order " or " settle order". This means that we have to prepare an order, based on the decision and submit it to the judge for signature. When we do this, it is called "Settling an Order". This must be done on advance notice to the other attorney if it says "settle order".

• After we prepare the proposed order, which the court directed to be "settled", we serve a copy of it on the other attorney, together with a copy of a "Notice of Settlement", which is a notice telling the other attorney the date, time, place and name of the judge whom we are submitting the order to for signature. Under our Court rules, we must give at least five days advance notice of settlement (plus 5 for mail).

• After the order is signed (if we had to settle an order) or in the case where the judge decides the motion by making his own order, the order is entered in the records in the County Clerk's office. When we obtain our copy we serve a copy of the order, with Notice of Entry, on the other attorney (or on the other party, if directed to do so in the order).

• An order with notice of entry must be served to start the other party's time to take an appeal running. Unless an order is served it is not effective.