Clients will ask sometimes, “How do I go about getting assistance from the court?” The answer to that is a motion. A motion is a document that is created by the client and the attorney to seek specific monetary or custody or access relief from the court because they, for whatever reason, can’t get it voluntarily from the other side. The motion is the vehicle, if you will, that goes before the court that requests these things. As I have mentioned, several factors that could require a motion could be temporary custody of the children, could be temporary maintenance, temporary child support, exclusive use and occupancy of the marital residence, use of the car that is under your spouse’s name so that you are sure that you can continue to use it during the pendency of the action.
There are two types of motions that can be filed. One is an order to show cause, which is brought about in times of exigent or emergent circumstances. An order to show cause allows a person to inform the judge about all of the reasons that they may feel they should be granted relief by the court. With the order to show cause, the court sets the time for the answers, when the answers are to be filed.
With a notice of motion, based on the time that the drafting attorney wants before the matter comes before the court, they can set that up for the answer to be provided, pursuant to the statute. When you are the party in charge of creating a motion, you get to choose the date that this will be addressed in court. However, the party who you are creating the motion against must receive at least of notice 8 days in advance. If you receive a motion against you but you want to oppose it, that will require an Affidavit in Opposition. In order to create such an affidavit, one must prepare a lot of paperwork known as the opposition papers.
Once all parties appear in court to present and answer to the motion, hopefully an agreement about the relief can be made. If the two parties cannot come to an agreement concerning the relief, the judge is the one who makes the final decision. The court allows 60 days for the judge to make their final decision on the motion in these circumstances, but sometimes the decision can come almost immediately. After the decision has been made by the judge, the parties have the opportunity to appeal the decision within 30 days if they decide that they are unhappy with the decision.
If you are in need of legal counsel, please contact The Penichet Firm and we will be happy to assist you in your family and criminal law matters.