Should I File a Motion in the Midst of a Divorce Settlement?
Jun 15, 2017 | Written by: | Share
One of the most frequently asked questions in a divorce, custody, or support proceeding is “when and how do I get before the judge to have him/her decide my case/issue?” Unfortunately, it is a somewhat complicated, multifaceted answer.
Unless it is a true emergency, a motion (an application to the Court for specific relief) generally takes 4-6 weeks to be heard (or longer). However, that does not necessarily mean a decision will be handed down that day. In some instances, decisions are made swiftly, but in other cases, a litigant can wait months for a decision. While waiting for that motion to be decided, not only does real life continue, but if you are in the midst of a divorce or other litigation, that continues too.
The point of this blog is to discuss when and how to file a motion while simultaneously engaging in settlement. A significant factor in that discussion is the cost associated with filing a well-prepared motion.
Settlement and motion practice/litigation should be viewed as parallel tracks. It may sound contradictory, but the system that exists currently requires attorneys to wear these dual hats in advocating for our clients. Clients, and sometimes attorneys, struggle with this dynamic and often wrestle with when and if to spend the time, money and energy filing a motion while also trying to settle the case globally. While there is no “right” answer, and each case is fact-sensitive and specific, there are some general guidelines and concepts to consider, such as:
- What do I hope to gain by filing this motion?
- Will enforcement of the issues (if that is a request) assist in settlement or further alienate the parties?
- Have I reached out to my adversary to attempt to resolve the issues in good faith? Should I do so, and will the Judge expect me to have at least made such an effort prior to filing?
- Am I in compliance with any outstanding orders or issues? This is a critical point that is often missed. Be prepared to preemptively address any issue for which you may be non-compliant or that may be raised by the other side. Better yet, be compliant and in good standing when you address the Court so that you appear reasonable, credible, etc.
- If post-judgment, does a prior Agreement require mediation or settlement prior to filing and have I made that reasonable attempt?
- If I file this motion, will it spur a settlement discussion and provide leverage or will the motion terminate those efforts?
- Can I ask for a conference with the Judge and my adversary to see if we can resolve the issue?
- How does the judge assigned to my case view motion practice? Some judges require motions to extend deadlines or other procedural type relief. Some judges require motions when there are discovery issues. It is important that your attorney have familiarity with the judge presiding over your matter.
- Should I continue to try to work out a settlement and continue to go back and forth when there are issues of non-compliance? This is the most difficult question often posed to attorneys and clients alike. There is no right answer, and it is extremely fact-specific to each case. However, people often place efforts on settlement to the exclusion of litigation, and that may not always be the right approach. They may believe that settlement is imminent and, therefore, it makes sense to continue in that regard, foregoing a motion. But when settlement fails, someone changes their mind, adds a term or contingencies, the other litigant is often left questioning why he/she didn’t file the motion in the first place. This happens more often than it should, leaving litigants feeling regretful in hindsight.
These issues are extremely complex, as is motion practice in general. It is critical to be educated, and to know and understand your rights. Know what options are available to you and make informed decisions. You also want to consider these points when consulting with counsel and interviewing an attorney.
Diana Fredericks, Esq., is a partner with Gebhardt & Kiefer, PC and devotes her practice solely to family law matters. She is a Certified Matrimonial Attorney and was named to the NJ Super Lawyers Rising Stars list in the practice of family law by Thomson Reuters in 2015, 2016 and 2017, and to the New Leaders of the Bar list by the New Jersey Law Journal in 2015. Contact Ms. Fredericks for a consultation at 908-735-5161 or via email.
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