Frequently in a divorce, a spouse is frustrating other at every turn whether they are spending money from a joint account that is supposed to be frozen or just aren’t adhering to the custody schedule the pair had set up with themselves. To combat this, a party’s counsel may file a motion with the court.
A motion is a written request to enter certain orders usually to limit the actions of the opposing party requiring the opposing party to perform. Some examples of motions are: to require a party to take a paternity test, require child support payments based on the custody and visitation agreements, and create child custody and visitation schedules. However, motion orders are temporary. The order’s purpose is to dictate behavior until a final order can be given at trial; however, most courts require that parties attempt to resolve the issue before filing a motion.
The hearing for a motion is very short, lasting five minutes at most; however, it may take a while for a party’s docket is called. During the hearing, the judge asks questions that enable them to discern the essential facts of the dispute and the reason for the motion. In other words, they are trying to find out why a party filed the motion and if the circumstances surrounding the dispute warrant a court order. If they find that the law is not supported by sufficient facts, they will deny the motion. If the facts warrant action under the law, the judge will grant the motion. Granting the motion means that the parties receive an order that dictates actions taken before the trial.
Most motions are made before a trial since they dictate actions taken before trial, but they have an additional benefit of making the trial more efficient. Motions also dictate how a trial proceeds, and with the motions out of the way, the trial court can focus on the primary issues giving rise to the suit. However, not all motions can be filed before trial. Specifically, if a party tries to file a motion to change an order, they would need to get the order first.
A party may file a motion that asks the court to set aside a default order. A default order usually occurs when one party fails to appear at the trial or motions hearing. Also, a party may file a motion to set aside a final order. Setting aside an order, in essence, means that a party wants the order undone. There is always someone who is not satisfied by a final order, but a party cannot file a motion to set aside an order merely because they did not like the order. An order will only be set aside if there is sufficient evidence that the order was wrong or unjust.
If a party does not possess sufficient evidence to get an order set aside, they may still file for a modification to the order. Situations occur after the final order is given that require a provision that was not reasonably foreseen at the time the final order was given, and a party can file a motion to modify an order; however, it is up to that party to present the legal standard that would allow the party to make this change to the judge who will either approve or deny the change. Some common modifications that are made are: changing child custody and visitation, usually meaning that a parent either wants sole custody or joint custody; relocating with the child or children; and changing child support.
Family court motions for Allegheny County are filed with the family court located in downtown Pittsburgh. Hearings take place at 2 p.m. every Monday through Thursday and at 10 a.m. every Friday at the same location. The order in which the motions appear is organized by docket, and when your number is called, the attorneys will argue for or against the motion in question to a judge. The judge does not have to be the one to which a case is assigned. As a result, counsel may prepare a brief to inform a judge unfamiliar with the case of the nature of the dispute giving rise to the motion and the facts that support the granting of the motion. Parties may and are encouraged to accompany counsel to their motions hearing in case they are needed to clarify facts involved in the dispute.
Motions are an important practice in a case. They can be implemented when a party feels that the other has some sort of unjust advantage, or to get the other party to act when they refuse. A motion hearing, while seemingly inconvenient, helps the trial be more efficient when deciding a final order.
This article was written by writer and legal intern, Jennifer Lapinski.
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