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(1) The author of this website is not your lawyer, and there is no attorney-client relationship between you and the author;

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(4) There are many legal concepts, special rules, and exceptions not discussed here; and

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If you need legal advice, hire an attorney.

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HOW TO FILE A MOTION IN NEW JERSEY

WHAT IS A MOTION?

A motion is the method by which you can request relief from the Court either during a proceeding or after a proceeding has concluded. When you file a motion, you are asking the Court to enter an Order. “An application to the court for an order shall be by motion, or in special cases, by order to show cause.” [R. 1:6-2(a).]

Filing an Order to Show Cause seeking emergent relief is not addressed here. This section of MNJD addresses filing motions for non-emergent relief, which are generally heard at least 24 days after filing. If you would like more information about asking for emergent relief, please read here: [MNJD Guide to Emergent Relief.]

Each specific request for relief is governed by its own body of law, and you can read more about certain areas by following these links.

  1. Enforcement;
  2. Name changes;
  3. Clerical errors;
  4. Reconsideration;
  5. Setting aside orders;
  6. Custody;
  7. Child support; and
  8. Alimony.

Please also browse the remainder of the MNJD Guide and consider scheduling an initial consultation by clicking here.

RECOMMENDATION TO HIRE ATTORNEY

If you need to file a motion, I strongly recommend hiring an attorney to assist you. The outcome of a motion can significantly impact custody, alimony obligations that can potentially continue until death, and child support obligations (including the obligation to pay for college and graduate school) that may amount to hundreds of thousands of dollars. The most important issues in life are at issue, and there is no avoiding it: The motion process is incredibly complicated.

There are two basic reasons I make that recommendation: (1) the Doctrine of Res Judicata; and (2) the Entire Controversy Doctrine.

First, “[t]he term ‘res judicata’ refers broadly to the common-law doctrine barring relitigation of claims or issues that have already been adjudicated.” [Velasquez v. Franz, 123 N.J. 498, 505 (1991).] What this means is that once the Court has decided an issue between you and your spouse, it typically will not go back and decide the issue again. In general, you’re required to get it right the first time around.

Second, the entire controversy doctrine requires that all claims between parties “arising out of or relating to the same transactional circumstances … be joined in a single action.” [Brown v. Brown, 208 N.J. Super. 372, 377-78 (App. Div. 1986).] The entire controversy doctrine bars a subsequent action when a prior action based on the same transactional facts has been “tried to judgment or settled.”  [Kaselaan & D’Angelo Assocs., Inc. v. Soffian, 290 N.J. Super. 293, 299 (App. Div. 1996).] Because of the Entire Controversy Doctrine, it is incredibly important to bring all of your possible claims against the opposing party at one time. Failing to bring a claim (even if you did not know that claim existed because you’re unfamiliar with the law) may result in you being forever barred from raising that claim later on.

Hiring a skilled and aggressive attorney is incredibly important to protecting and preserving your rights and the rights of your children. I have built this website to help residents of New Jersey begin to understand the laws by which they are expected to abide, but I am also willing to sit down with you free of charge to explore the unique facts of your case, explain the law, and address the likely timeline, costs, and range of possible outcomes.

JUDICIARY FORMS

The New Jersey Judiciary has distributed certain forms for filing motions in the Family Part. All of those forms are available through the New Jersey Judiciary’s Self-Help Center. The two of those forms most relevant to this section of the MNJD Guide are as follows:

  1. Family Part Post-Judgment Motion Kit; and
  2. Family Part Case Information Statement.

Please note that a Family Part Case Information Statement is not required on every motion, but on certain support-related requests, your motion may be denied if it does not include the document.

If you cannot afford an attorney to represent you, I strongly recommend carefully reviewing these forms and strictly adhering to the instructions therein.

 

DOCUMENTS TO INCLUDE WITH MOTION

The documents typically included with a motion in the Family Part are as follows:

  1. Notice of Motion;
  2. Certification;
  3. Certification of Filing and Service;
  4. Notice to Litigants;
  5. Letter Brief;
  6. Proposed Form of Order;
  7. Payment to the Clerk of the Court for $50;
  8. Attorney Certification of Services (if represented by attorney); and
  9. Family Part Case Information Statement (optional).

Notice of Motion. This document identifies the specific relief you are seeking from the Court. You should be as specific as possible when drafting your requests for relief.

Certification. This document is your chance to explain the reasons for which you are requesting relief from the Court. Typically, you should attach “exhibits,” which are documents that support your statements in the Certification. For example, if you claim that the opposing party has failed to reimburse you for a child-related expense, you might attach a copy of the invoice and a cancelled check proving that you paid the expense. You should be as specific as possible when describing your reasons, and because litigation in the Family Part often devolves into a he-said-she-said dispute, it is best to include as much supporting documentation as possible.

Certification of Filing and Service. This document indicates that you filed your documents with the Court and served (meaning provided in the manner required under the Rules of Court) a copy of those documents to the opposing party. Failure to properly serve the documents on the opposing party may result in your motion being denied.

Notice to Litigants. This is a standard form notifying the opposing party that he or she is required to respond in writing. Generally, litigants are not allowed to simply appear on the return date and argue orally. Instead, the motion will be decided “on the papers” (meaning without oral argument) unless opposition is first filed in writing.

Proposed Form of Order. This is a draft Court Order that the Judge can sign if he or she grants your requests for relief. In the Family Part, these documents are rarely used by the Court, but they are nevertheless routinely filed.

Payment to Clerk of the Court for $50. There is a $50 filing fee assessed by the Court for every motion filed, which should be paid by check or money order.

Letter Brief (optional).  This is a document, typically prepared by an attorney, that describes the legal authority supporting your requests for relief. Legal issues in the Family Part are often complex and fact-specific, and it is therefore important carefully spell out the legal theory on which your request is based. It is that much more important because judges in the Family Part are frequently rotated, which means that the Court may have little experience with the specific issue you are presenting.

Attorney Certification of Services (optional). When awarding fees, the Court is required to analyze whether the fees incurred were reasonable. Thus, if you are requesting reimbursement of attorneys fees, your attorney is required to file a statement of his or her services and the costs incurred.

Family Part Case Information Statement (optional). This document is not required for every motion, but on support-related motions, it is possible that your requests will be denied unless you file a completed Family Part Case Information Statement. For support modification motions, you are also required to attach a copy of the Family Part Case Information Statement filed prior to establishment of the support obligation that you are asking to change.

POSSIBLE REQUESTS FOR RELIEF

The relief requested in your motion is limited only by your imagination (and of course, just because you can think of it does not mean the Court will grant your request). The law governing some of the most common requests, however, has been addressed on MNJD, including the following:

  1. Setting, modifying, terminating, and enforcing child support; [MNJD Guide to Child Support.]
  2. Setting, modifying, terminating, and enforcing alimony; [MNJD Guide to Alimony.]
  3. Setting, modifying, terminating, and enforcing custody; [MNJD Guide to Custody.]
  4. Enforcement of other Court Orders; [MNJD Guide to Enforcement of Court Orders.] and
  5. Reconsideration of Court Orders. [MNJD Guide to Reconsideration of Court Orders.]

NOTICE OF MOTION

A “Notice of Motion” is a separate document that sets forth your requested relief in numbered paragraphs. It is designed to ensure the opposing party has plenty of notice regarding the specific Order you would like the Court to enter. “A motion, other than one made during a trial or hearing, shall be by notice of motion in writing unless the court permits it to be made orally.” [R. 1:6-2(a).]

REQUIREMENTS FOR MOTION

“Every motion shall state the time and place when it is to be presented to the court, the grounds upon which it is made and the nature of the relief sought[.]” [R. 1:6-2(a).]

“The motion shall be accompanied by a proposed form of order in accordance with R. 3:1-4(a) or R. 4:42-1(e), as applicable. The form of order shall note whether the motion was opposed or unopposed.” [R. 1:6-2(a).]

FACTS IN SUPPORT OF MOTION

“If the motion or response thereto relies on facts not of record or not subject of judicial notice, it shall be supported by affidavit made in compliance with R. 1:6-6.” [R. 1:6-2(a).]

“If a motion is based on facts not appearing of record, or not judicially noticeable, the court may hear it on affidavits made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify and which may have annexed thereto certified copies of all papers or parts thereof referred to therein. The court may direct the affiant to submit to cross-examination, or hear the matter wholly or partly on oral testimony or depositions.” [R. 1:6-6.]

In lieu of an affidavit, most parties in a divorce proceeding submit certifications. A certification is simply a written, signed statement to the Court that ends as follows: “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.” [R. 1:4-4.]

In divorce proceedings, very few facts are subject to judicial notice. Nevertheless, the concept is worth explaining.

“(a) Notice of law. — Law which may be judicially noticed includes the decisional, constitutional and public statutory law, rules of court, and private legislative acts and resolutions of the United States, this state, and every other state, territory and jurisdiction of the United States as well as ordinances, regulations and determinations of all governmental subdivisions and agencies thereof. Judicial notice may also be taken of the law of foreign countries.

(b) Notice of facts. — Facts which may be judicially noticed include:

(1) such specific facts and propositions of generalized knowledge as are so universally known that they cannot reasonably be the subject of dispute,

(2) such facts as are so generally known or are of such common notoriety within the area pertinent to the event that they cannot reasonably be the subject of dispute,

(3) specific facts and propositions of generalized knowledge which are capable of immediate determination by resort to sources whose accuracy cannot reasonably be questioned, and

(4) records of the court in which the action is pending and of any other court of this state or federal court sitting for this state.” [N.J.R.E. 201.]

PAGE LIMITS

“Unless the court otherwise permits for good cause shown and except for the certification required by R. 4:42-9(b) (affidavit of service), all certifications in support of a motion shall not exceed a total of fifteen pages. All certifications in opposition to a motion or in support of a cross-motion or both shall not exceed a total of twenty-five pages. All reply certifications to opposing pleadings shall not exceed a total of ten pages.” [R. 5:5-4(b).]

NOTICE OF REQUIREMENT TO RESPOND IN WRITING

Every motion must include the following language:

“NOTICE TO LITIGANTS: IF YOU WANT TO RESPOND TO THIS MOTION YOU MUST DO SO IN WRITING. This written response shall be by affidavit or certification. (Affidavits and certifications are documents filed with the court. In either document the person signing it swears to its truth and acknowledges that they are aware that they can be punished for not filing a true statement with the court. Affidavits are notarized and certifications are not.) If you would also like to submit your own separate requests in a motion to the judge you can do so by filing a cross-motion. Your response and/or cross-motion may ask for oral argument. That means you can ask to appear before the court to explain your position. However, you must submit a written response even if you request oral argument. Any papers you send to the court must be sent to the opposing side, either to the attorney if the opposing party is represented by one, or to the other party if they represent themselves. Two copies of all motions, cross-motions, certifications, and briefs shall be sent to the opposing side.

The response and/or cross-motion must be submitted to the court by a certain date. All motions must be filed on the Tuesday 24 days before the return date. A response and/or cross motion must be filed fifteen days (Thursday) before the return date. Answers or responses to any opposing affidavits and cross-motions shall be served and filed not later than eight days (Thursday) before the return date. No other response is permitted without permission of the court. If you mail in your papers you must add three days to the above time periods.

Responses to motion papers sent to the court are to be sent to the following address: ____________. Call the Family Division Manager’s office (____________) if you have any questions on how to file a motion, cross-motion or any response papers. Please note that the Family Division Manager’s office cannot give you legal advice.” [R. 5:5-4(d).]

A directory of Family Division offices is available here, which will assist you with filling in the blanks on the required Notice to Litigants: [Directory of Family Division Offices.]

EFFECT OF FAILURE TO RESPOND TO MOTION

“The motion shall be deemed uncontested and there shall be no right to argue orally in opposition unless responsive papers are timely filed and served stating with particularity the basis of the opposition to the relief sought. If the motion is withdrawn or the matter settled, counsel shall forthwith inform the court.” [R. 1:6-2(a).]

REQUESTS FOR ORAL ARGUMENT

“Except as otherwise provided by R. 5:5-4 (family actions), no motion shall be listed for oral argument unless a party requests oral argument in the moving papers or in timely-filed answering or reply papers, or unless the court directs. A party requesting oral argument may, however, condition the request on the motion being contested. If the motion involves pretrial discovery or is directly addressed to the calendar, the request shall be considered only if accompanied by a statement of reasons and shall be deemed denied unless the court otherwise advises counsel prior to the return day. As to all other motions, the request shall be granted as of right.” [R. 1:6-2(d).]

“The court in civil matters, on its own motion or on a party’s request, may direct argument of any motion by telephone conference without court appearance. A verbatim record shall be made of all such telephone arguments and the rulings thereon.” [R. 1:6-2(e).]

“Motions in family actions shall be governed by R. 1:6-2(b) except that, in exercising its discretion as to the mode and scheduling of disposition of motions, the court shall ordinarily grant requests for oral argument on substantive and non-routine discovery motions and ordinarily deny requests for oral argument on calendar and routine discovery motions” [R. 5:5-4(a).]

SUBMISSIONS PERMITTED

Other than the motion, opposition/cross-motion, and reply to the opposition/cross-motion, “[n]o other papers may be filed without leave of court.” [R. 1:6-3(a).]

ATTACHING EXHIBITS TO YOUR MOTION

It is strongly advisable to support your written statements by citing attached exhibits. For example, if you claim that you paid a certain amount of money for your child’s extracurricular activity, you can support that statement by attaching a paid invoice as an exhibit.

“Exhibits attached to certifications shall not be counted in determining compliance with the page limits contained in this Rule. Certified statements not previously filed with the court shall be included in page limit calculation. All exhibits shall be differentiated from the text of a certification or affidavit by the use of labeled dividers before each exhibit or some other means. Where labeled dividers are used, they shall extend beyond the 8- 1/2 inch by 11 inch size of the paper.” [R. 5:5-4(g).]

LEGAL ARGUMENT IN SUPPORT OF MOTION

You can submit a legal brief alongside your motion, and if your case involves anything but a routine request, you should.

“The moving party’s brief in support of a motion shall, pursuant to R. 1:6-3, be served and submitted to the court with the moving papers. The respondent shall serve and submit an answering brief at least 8 days before the return date. Except for a brief submitted in support of a dispositive motion or cross-motion, a brief submitted in the Civil Part or the Special Civil Part in support of a motion or cross-motion and any answering brief, exclusive of any tables of contents or authorities, shall not exceed 40 pages and shall contain no more than 26 double-spaced lines of no more than 65 characters including spaces, each of no less than 10-pitch or 12-point type. A brief submitted in support of a dispositive motion or cross-motion, which includes for purposes of this rule only a motion to dismiss pursuant to R. 4:6-2(e), a motion for summary judgment pursuant to R. 4:46, and a motion for summary judgment pursuant to R. 4:69-2, and any answering brief, exclusive of any tables of contents or authorities, shall not exceed 65 pages and shall not contain no more than 26 double-spaced lines of no more than 65 characters including spaces, each of no less than 10-pitch or 12-point type. A reply brief, if any, shall be served and submitted at least 4 days before the return date. A reply brief shall not exceed 15 pages and shall contain no more than 26 double-spaced lines of no more than 65 characters including spaces, each of no less than 10-pitch or 12-point type. Prior to the date on which the brief is due to be submitted and served, a party may make an application in writing to the court to file an over-length brief exceeding these limitations, which the court may permit when appropriate in light of the complexity of the issues raised and without awaiting a response from any other party concerning the request. No over-length briefs may be submitted without advance permission to do so. Briefs may not be submitted after the time fixed by this rule or by court order, including the pretrial order, without leave of court, which may be applied for ex parte.” [R. 1:6-5.]

FILING AND SERVICE OF MOTIONS

Your motion needs to be filed with the Court and provided (i.e., “served”) to the opposing party.

“The original of all motion papers, orders to show cause and orders in civil actions in the Superior Court shall be filed in accordance with R. 1:5-6(b), except that in all actions in the Chancery Division or specially assigned to a judge of the Law Division or, if the judge to whom the motion is assigned is known, a copy of all motion papers shall also be simultaneously submitted to the judge.” [R. 1:6-4.]

Your motion needs to be provided to the Court either before being served on the opposing party or immediately afterward. “In any trial court, unless otherwise stated, all papers required to be served by R. 1:5-1 shall be filed with the court either before service or promptly thereafter, unless the rule requiring service or filing provides otherwise.” [R. 1:5-6(a).]

To be filed with the Court, your motion papers need to be provided to the Clerk of the Superior Court in the county of New Jersey hearing your divorce. “Except as otherwise provided by R. 1:6-4 (motion papers), R. 1:6-5 (briefs), R. 4:42-1(e) (orders and judgments), and R. 5:5-4 (motions in Family actions), a paper is filed with the trial court if the original is filed as follows: … (4) In actions in the Chancery Division, Family Part, with the deputy clerk of the Superior Court in the county of venue if the action is a dissolution action, with the Surrogate of the county of venue if the action is for adoption, and in all other actions, with the Family Division Manager in the county of venue, as designee of the deputy clerk of the Superior Court[.]” [R. 1:5-6(b).]

DEADLINES FOR FILING AND SERVICE OF MOTION

“A notice of motion shall be served and filed, together with supporting affidavits and briefs, when necessary, not later than 24 days before the time specified for the return date. For example, a motion must be served and filed on the Tuesday for a motion date falling on a Friday 24 days later. Any opposing affidavits, cross-motions or objections shall be served and filed not later than 15 days before the return date. For example, a response must be served and filed on a Thursday for a motion date falling on a Friday 15 days later. Answers or responses to any opposing affidavits and cross-motions shall be served and filed not later than 8 days before the return date. For example, such papers would have to be served and filed on a Thursday for a motion date falling on the Friday of the following week. If service is made by mail, 3 days shall be added to the above time periods. Two copies of all motions, cross-motions, certifications, and briefs shall be served. [R. 5:5-4(c).]

COMPLETION OF SERVICE

“For purposes of this rule, service of motion papers is complete only on receipt at the office of adverse counsel or the address of a pro se party. If service is by ordinary mail, receipt will be presumed on the third business day after mailing.” [R. 1:6-3(c).]

REQUIREMENTS ON DISCOVERY MOTIONS

“Every motion in a civil case or a case in the Chancery Division, Family Part, not governed by paragraph (b), involving any aspect of pretrial discovery or the calendar, shall be listed for disposition only if accompanied by a certification stating that the attorney for the moving party has either (1) personally conferred orally or has made a specifically described good faith attempt to confer orally with the attorney for the opposing party in order to resolve the issues raised by the motion by agreement or consent order and that such effort at resolution has been unsuccessful, or (2) advised the attorney for the opposing party by letter, after the default has occurred, that continued non-compliance with a discovery obligation will result in an appropriate motion being made without further attempt to resolve the matter.” [R. 1:6-2(c).]

“A motion to extend the time for discovery shall have annexed thereto either a copy of all prior orders granting or denying an extension of the discovery period or a certification that there have been no such prior orders. The moving papers shall also set forth the date of any scheduled pretrial conference, arbitration proceeding scheduled pursuant to R. 4:21A, calendar call or trial, or state that no such dates have been fixed.” [R. 1:6-2(c).]

“Discovery and calendar motions shall be disposed of on the papers unless, on at least two days notice, the court specifically directs oral argument on its own motion or, in its discretion, on a party’s request. A movant’s request for oral argument shall be made either in the moving papers or reply; a respondent’s request for oral argument shall be made in the answering papers.” [R. 1:6-2(c).]

REQUESTING RELIEF IN A CROSS-MOTION

Whenever you are served with a motion, you can file a cross-motion requesting relief of your own. Unlike in other parts of the Superior Court, when you file a cross-motion in the Family Part (where all divorce proceedings are heard), your requested relief can be on any issue whatsoever. It does not need to be related to the motion you have received. “A cross-motion may be filed and served by the responding party together with that party’s opposition to the motion and noticed for the same return date only if it relates to the subject matter of the original motion, except in Family Part motions brought under Part V of these Rules where a notice of cross-motion may seek relief unrelated to that sought in the original motion.” [R. 1:6-3(b).]

REQUESTING ENFORCEMENT OF AN ORDER

The Rules of Court require that, when you’re seeking enforcement of an order or judgment, you attach a copy to your motion. “When a motion is filed for enforcement or modification of a prior order or judgment, a copy of the order or judgment sought to be enforced or modified shall be appended to the pleading filed in support of the motion.” [R. 5:5-4(a).]

For more information on how to enforce a Court Order, please refer here: [MNJD Guide to Enforcement Motions.]

REQUESTING ESTABLISHMENT OF SUPPORT

Whenever you file a request to establish support (either child support or alimony), you need to provide a completed Case Information Statement to the Court.

“When a motion or cross-motion is filed to establish alimony or child support, the pleadings filed in support of, or in opposition to the motion, shall include a copy of a current case information statement.” [R. 5:5-4(a).]

You can find a blank Case Information Statement here: [Family Part Case Information Statement.]

For more information on child support, please refer here: [MNJD Guide to Child Support.]

For more information on alimony, please refer here: [MNJD Guide to Alimony.]

REQUESTING MODIFICATION OF SUPPORT

Whenever you file a motion requesting modification of a support obligation (either child support or alimony), you need to supply the Court with: (1) the Case Information Statement filed when the obligation was last calculated; and (2) an updated Case Information Statement reflecting your current financial circumstances.

“In the event a motion or cross-motion is filed to modify an obligation for alimony or child support based on changed circumstances, the movant shall append copies of the movant’s current case information statement and the movant’s case information statement previously executed or filed in connection with the order, judgment or agreement sought to be modified. If the court concludes either that the party seeking relief has demonstrated a prima facie showing of a substantial change of circumstances or that there is other good cause, then the court will order the opposing party to file a copy of a current case information statement.” [R. 5:5-4(a).]

You can find a blank Case Information Statement here: [Family Part Case Information Statement.]

The reasoning behind this is straightforward. The Court is required to review the parties’ finances when the support order was last calculated and compare with the parties’ finances as they now exist to determine whether modification is appropriate.

“[I]t is clear that the changed-circumstances determination must be made by comparing the parties’ financial circumstances at the time the motion for relief is made with the circumstances which formed the basis for the last order fixing support obligations.” [Beck v. Beck, 239 N.J. Super. 183, 190 (App. Div. 1990).]

For more information on child support, please refer here: [MNJD Guide to Child Support.]

For more information on alimony, please refer here: [MNJD Guide to Alimony.]

Andrew M. Shaw, Esq. - Somerville, NJ Divorce Lawyer

Andrew M. Shaw is the author of My New Jersey Divorce and a divorce and family attorney with the DeTommaso Law Group in Somerville, New Jersey. CLICK HERE to schedule a consultation.

Focused. Accessible. Compassionate. Aggressive.


ASSOCIATIONS & MEMBERSHIPS:

  • New Jersey State Bar Association – Family Law Section
  • New Jersey State Bar Association – Young Lawyers Division
  • Somerset County Family Law Practice Committee
  • MENSA International

BAR ADMISSIONS:

  • New Jersey State Bar
  • U.S. District Court for the District of New Jersey