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Divorce: Pre-Trial Written Motions

Requests made to the court for orders – prior or after the conclusion of cases are called motions. Those that are requested for before the case is concluded are known as pre-trial motions. During trial, either side can make a motion. Pre-trial motions are requested for compelling the opposite party into doing something.

Most pre-trial motions include but are not limited to pendente lite child support, pendente lite maintenance of spouse, pendente lite custody of minor children, pendente lite occupancy of marital home, pendente lite protection orders, interim award of appraiser and expert fees as also fees for your family lawyer and such. Motions may also involve punishing the opposing party for failure in complying with requests while discovery. Pendente lite means temporary – while the litigation or lawsuit is pending. Either party can file for a “Notice by Motion” or “Order to Show Cause”.
Notice of Motion

Motions invoked through notice of motion consist of three paper sets which are:

• Notice of motion, filed by moving party
• Affirmation in opposition, filed by opposing party, and
• Reply by the moving party.

The motion as filed by moving party comprises:

• Caption of case, name of court where motion is being made, date and time along with specified request being made.
• Sworn statement that clearly indicates the reasons behind asking for the motion (party’s affidavit).
• Attorney’s confirmation.
• Any exhibit to support the motion.

A minimum 8 days notice is mandatory and in case the notice is being sent through mail, another 5 days get added. The affirmation by opposition also consists of sworn affidavit of party, attorney’s confirmation and exhibits. The reply is filed by moving party after considering the affirmation.

Order to Show Cause

Order to show cause differs in that the filing party can submit it to court before it is issued to the other party. Thus this enables communication between court and moving side without the presence of the other opposing side. Requests for issue of temporary order prior to receiving of response from the other side may be made in an Order to Show Cause motion.

An Order to Show Cause is commonly used in cases of temporary child maintenance or support. The request for motions through order to show cause consists of request for motion filed by moving party and a confirmatory response in opposition filed by the opposing party.

Deciding the Motion

The court decides and issues the order after considering and evaluating all papers submitted in court. Most motion requests are sanctioned (entirely, partly) or denied without any need for oral arguments but there can be instances when court can require it.