Family Law Motions in New York

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.

How Do I Make a Family Law Motion?

Motions are generally written (although you may be able to make some motions orally in court). Usually, you'll have to fill out a legal form and file it in court.

Some of New York's requirements for family law motions are different, depending on whether you file a "motion on notice" or an "order to show cause" (more below on both of those).

Motion on Notice

Usually, you have to give "notice," or properly notify the other side (usually your spouse or ex-spouse in a family law case) about your motion. This is called a "Motion on Notice."

In New York, you must serve the other side and the court with a copy of your motion paperwork eight days (or 13 days if served by mail). In the court's copy of your motion papers, you must include an "affidavit of service," a document where you (or your lawyer) swear that you served the other side with the documents.

Your 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 document (known as a "brief") that explains your legal argument and the supporting statutes and case law.

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.

Here are the basic steps for an order to show cause:

• 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 (not in the presence of the other side).
• The judge will sign the order to show cause after deciding when and where the order to show cause will be heard.
• You then must 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, which could be by fax, mail, or personal delivery.

In the order to show cause, the judge may include a provision (sometimes called a "stay") that requires stopping certain conduct. This is aimed at maintaining the status quo until the hearing. For example, a judge will often issue a temporary restraining order during a divorce proceeding to prevent either spouse from selling or transferring assets or relocating with children before the divorce is final.

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" the 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.

Resources and Help With a Family Law Motion

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.