What is a "motion" in family law?
A motion is a way of asking the court to do something for you, like make a decision on a contested issue, before or after your divorce case is over. A motion can also be used in emergency situations when you need the judge to handle some urgent issue in your case before the next scheduled court date. The motion itself is generally written (although some motions can be made orally), and many times will consist of legal forms that need to be filled out and filed in court.
How do I make a motion?
In New York, you can make, or file, a motion in one of two ways: by “Motion on Notice” or by “Order to Show Cause.”
What is a “Motion on Notice”?
Usually, you have to give “notice,” or properly notify the other side about your motion. This is called a “Motion on Notice.” In New York, you have to serve the other side and the court with a copy of your motion paperwork eight days (or 13 days if serving by mail) before the motion will be heard by the judge. Your motion paperwork, or “motion papers,” should include the following documents:
- a notice of motion stating the time and place that the motion will be heard, called the “return date”
- supporting papers (documents, exhibits, and affidavits) that support the motion
- your request for relief (what you’re asking the court to do)
- the grounds for relief (explaining why the court should grant your request), and
- if you have an attorney, your attorney will submit an "affirmation," or a statement under penalty of perjury, that explains the facts of the case.
A lawyer may also include in the motion papers a "brief," or paper, that states the legal argument, statutes, and case law that their request relies upon. In the court’s copy of your motion papers, you have to include an “affidavit of service,” a document where you (or your lawyer) swear that you served the other side with your motion papers.
What is an “Order to Show Cause”?
Sometimes, you can make a motion without notice. In New York, this type of substitute motion is called an “Order to Show Cause.” An order to show cause can be heard anytime the court directs, even fewer than the usual eight days, and even as short as a few hours later, if the court is convinced there’s a real emergency. An order to show cause consists of basically the same things as the moving papers discussed above. The big difference is that an order to show cause is presented to the court “ex parte,” meaning without both parties being present.
Spouses that want to file an order to show cause must follow these basic steps:
- prepare the same kind of papers as a motion on notice and go to the clerk’s office
- the clerk will inform the judge of your issue and the judge will speak with you ex parte
- the judge determines the time and place of the “return date” for the order to show cause to be heard and signs the order to show cause, and
- you then have to serve the other side with the signed order to show cause and a copy of all of the papers you gave to the judge. The judge will tell you how to serve the other party – it could be by fax, by mail, or by personal delivery.
The judge can include in the order to show cause a provision “staying” or stopping conduct in order to maintain the "status quo" (current situation) until the return date. A common “stay” is a temporary restraining order. This can be used, for example, to prevent spouses from disposing of assets or relocating with children in the middle of a divorce proceeding.
What if my spouse opposes my motion?
Once served with your motion, your spouse may oppose it by serving you and the court with opposing affidavits, affirmations and exhibits. Your spouse could also make a “counter-motion,” or a motion asking the court to do something else.
Usually, on the return date, both you and your spouse (or your lawyers) will have the opportunity to argue for or against the motion in front of the judge. Then, the judge will decide on the motion and either grant or deny it. The judge can make the decision immediately or “reserve” decision and decide at a later time, but within 60 days. If the judge grants your motion, the judge will issue an order. You (or your lawyer) must serve the other side with the order for it to go into effect.
Who do I contact for help?
If you don't have an attorney, the motion process can be confusing. The best place to obtain information about filing a motion is the clerk’s office in the court where your case is being heard or was heard previously. Judges often have their own rules about when and how to file motions. There are also differences in the motion process between the Family Courts and Supreme Courts in New York. The clerk’s office should be able to give you information for filing a motion in your specific case.
For the text of the law governing motions in Family Court, see N.Y. Fam. Ct. Act § 205.11.
For the text of the law governing motions in Supreme Court, see N.Y. C.P.L.R. § 2214.
For some motion and order to show cause forms, visit the website of the New York Courts.