Motion Practice in New Jersey Family Courts
By:
Justin M. Smigelsky, Esq.
An application to the court for relief
in the form of an enforceable order is generally by motion or, in certain
special circumstances, by an application for an order to show cause. There are
as many types of motions as there are issues to be decided in the family court
including, but not limited to, motions to provide support, fix custody and
parenting time, enter injunctive relief, enforce a prior court order, and award
counsel fees and costs.
In the majority of circumstances all
motions must be in writing. Ordinarily, the “motion papers” to be filed with
the court and served upon the other party include the notice of motion, supporting
certification or affidavit, legal argument in the form of a legal brief or
letter memorandum, and proposed form of order. The Rules of Court contain
specific requirements as to all papers to be filed with the court – for
example, all papers must be prepared on 8.5” x 11” letter-sized
paper, with double-spaced 10 or 12-point font, be within the applicable page
limits, and must be signed and dated by the attorney of record or a pro se
party.
If a motion does not rely on facts
already in the court’s record, it must be supported by affidavit or, as is more
common, a supporting certification. An affidavit or certification must be made
on personal knowledge, and must not contain improper matter – for example, the certification
must comply with the rules of evidence (hearsay, privilege, etc.). The affiant
must sign and date the certification after inclusion of the following statement:
“I certify that the foregoing statements made by me are true. I am aware that
if any of the foregoing statements made by me are willfully false, I am subject
to punishment.”
Because motion practice can be
expensive, it is important (in non-emergent matters) to make every good faith
effort to resolve all contested issues prior to seeking intervention of the court.
Furthermore, it is essential to ensure that your application has adequate
support in the law prior to filing. Motions without sufficient legal basis, as
well as motions made in bad faith, can result in an award of attorney fees and
costs to be paid by you to your adversary. Accordingly,
you may wish to consult with an experienced family law attorney if you are
considering making application to the court. This article is for information
purposes only, and is neither legal advice nor the creation of an attorney
client relationship.
Justin
M. Smigelsky, Esq., 2014, all rights reserved: Justin M. Smigelsky, Esq., 2014,
all rights reserved: Justin M. Smigelsky, Esq., 2014, all rights reserved:
Justin M. Smigelsky, Esq., 2014, all rights reserved: Justin M. Smigelsky,
Esq., 2014, all rights reserved: Justin M. Smigelsky, Esq., 2014, all rights
reserved: Justin M. Smigelsky, Esq., 2014, all rights reserved: Justin M.
Smigelsky, Esq., 2014, all rights reserved: Justin M. Smigelsky, Esq., 2014,
all rights reserved: Justin M. Smigelsky, Esq., 2014, all rights reserved:
Justin M. Smigelsky, Esq., 2014, all rights reserved: Justin M. Smigelsky, Esq.
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