A motion is a legal action your divorce attorney uses in order to get your particular issue into a courtroom and in front of a judge. For instance, once you file your original petition for divorce your attorney may file a motion with the court requesting an order for temporary child support.
Types of Motions in Divorce Court
There are two types of motions, the pre-trial (before you go to divorce court) and the post-trial (after you go to divorce court).
Motions are filed based on the need to gain a court order or to enforce a court order you already have. A motion to the court clearly states its purpose and the facts on which it is based. It will also, in most cases have a legal argument to support the need for new orders from the court.
Divorce attorneys have been known to make mistakes, it is up to you to make sure this doesn’t happen, at any time in your case. When your attorney files a motion it should concisely outline the issue. It is very important for you, as the client to have the opportunity to view any motions before they are submitted to the court.
Common Reasons for a Pre-Trial Motion
- The need to establish temporary financial support such as child support or spousal support in the interim before the divorce court trial. In fact, if you are using an attorney make sure that a request for a hearing is made at the time of filing for a divorce. You don't want to file for divorce and six months later be without needed support.
- Housing is another issue that can be determined by a pre-trial motion. Your attorney could file a motion requesting you have exclusive right to occupy the marital home during the period before a divorce court trial.
- Child custody can be determined by requesting the court for a temporary child custody order. A visitation schedule can also be determined by a pre-trial motion.
- If there are issues with domestic abuse, your attorney can request a restraining order.
- A judge can give a temporary order that determines what happens to marital property during the period before you go to divorce court. For instance, which spouse will use which automobile or, what property can be removed from the marital home by either spouse.
Common Reasons for a Post-Trial Motion
- A request to the court for a downward modification in child support or spousal support. If you lose your job and are not financially able to pay the ordered amount of support, a post-trial modification of that support is a way of protecting yourself financially.
- If a parent is not paying support, a post-trial motion can be used to hold that parent accountable or, in contempt of court. You can also have your attorney to file a motion requesting child support come directly out of the non-custodial parent's check.
- If your ex is defying the original divorce court order in any way, a post-trial motion gets you in front of a judge and gives you the opportunity to request a new order. It's been my experience though, that if an ex is going to defy an order, putting a new order in place does very little good at motivating and defiant ex.
A motion is a legal resource your divorce attorney can use to protect your interests either before or after your divorce is final. When you are armed with information about the court proceedings—before and after the trial—then you will feel more in control of the settlement. Hopefully that means you get everything you need for yourself and your children during your divorce.