How to File a Motion in Family Court
Filing motions is a common part of family court cases involving divorce, child custody, child support, and other domestic issues. Motions allow you to request orders from the court to resolve disputes or modify existing orders when circumstances change.
Learning how to properly file motions ensures your requests are heard and clearly communicated to the court. With the right preparation and presentation, you can successfully advocate for the outcomes you seek in your family law case.
Reasons for Filing Motions
There are several reasons you may need to file a motion in family court, including:
Modify Child Custody
If you want to change the existing child custody order, such as requesting joint custody instead of sole custody, you need to file a motion. The court will determine if there are grounds to modify custody based on the child’s best interests.
Modify Child Support
You can file a motion if you want to increase, decrease, or terminate child support due to substantial changes in financial circumstances. Supporting documents like pay stubs, bills, and tax returns help prove the need for modification.
Modify Spousal Support
Sometimes alimony or spousal support needs adjustment due to changes in income or need. Filing a motion allows you to request an increase, decrease, or termination of spousal support orders.
Enforce Existing Orders
If the other party violates or ignores a court order, you can file a motion requesting the court enforce the terms. This could involve contempt charges or other remedies to compel compliance.
Determine if You Have Grounds
Before filing, ensure you have legitimate legal grounds for the change you are requesting. Not just any reason will suffice. Courts require specific standards to be met based on the type of modification sought.
Significant Change in Circumstances
For child support or spousal support changes, you must prove a significant change in financial circumstances has occurred since the existing order was established. Examples include job loss, pay cuts, or increased expenses.
Noncompliance with Current Order
To enforce an order, you need to demonstrate how the other party has violated the court mandated terms, and provide evidence like records of missed payments or denial of visitation rights.
Fill Out the Required Forms
Each court has its own filing requirements, so check your court’s website for the specific forms needed. Common documents include:
Notice of Motion
This form provides details on what order you are requesting and on what grounds. Your proposed modifications should be clearly spelled out.
Your declaration provides background facts to support the motion. Reasons for the requested change and evidence backing your claims should be included.
Proof of Service
This document shows when and how you served the other party with the motion. It gets filed after delivering all documents.
Make at least two copies of your motion – one for your records and one for serving the other party. Many courts require additional copies for filing. Check your court’s rules.
File the Motion
To officially submit your request, you must file the motion with the court clerk.
A filing fee may be required depending on the court. Check fee schedules and have payment ready.
Motions are usually filed in the family courthouse handling your case. The clerk will review and stamp your documents.
Serve the Other Party
The other party must receive formal notice that you have filed a motion. Valid service options include:
Acceptance of Service
The other party can accept service by signing the Proof of Service form acknowledging receipt. This avoids hiring a process server.
A process server formally delivers the documents in person. This ensures the other party is aware of the motion.
You can mail the documents via certified mail with return receipt requested as proof of delivery.
Attend the Hearing
On the hearing date, arrive early and dress professionally. Be prepared to argue your case before the judge.
Present Your Case
Explain your reasons for requesting modifications and provide evidence that supports your claims. Highlight facts in your declaration.
Judges often ask questions to gain clarity. Answer directly and avoid arguing if the judge challenges you.
The Judge’s Ruling
At the conclusion of the hearing, the judge will either grant or deny the motion.
If granted, you will receive a written order outlining the new terms approved by the court.
If your motion is denied, the current orders will remain in place. You can reassess and consider filing again later if circumstances change.
Next Steps if Motion is Granted
If your motion succeeded, ensure you fully comply with the new court orders.
Submit Updated Order
Provide the judge’s clerk with a new proposed written order reflecting the granted changes.
Follow New Terms
Carefully review and fulfill the modified terms outlined in the updated order. Adhere to new due dates, amounts, and responsibilities.
Going through the proper steps when filing a family law motion ensures you have the best chance at achieving your desired outcome. Understanding the valid grounds, providing convincing evidence, and presenting effectively can lead to getting a fair ruling from the court. With an order for the modifications you sought, you can move forward under the new terms.
How soon after filing is the hearing?
Hearings are typically scheduled 2-4 weeks after filing to allow time for proper notice. Temporary emergency motions may get quicker hearings.
Can I file without an attorney?
Yes, you are allowed to file motions yourself without an attorney. However, family law can be complex, so consulting a lawyer is recommended.
What if I can’t afford the filing fee?
You can request a fee waiver from the court by showing proof of low-income or public assistance.
Can I file electronically? Some courts allow e-filing for a motion, but most still require submitting paper documents. Check your court’s requirements.
How should I behave at the hearing?
Dress nicely, be concise in your statements, remain calm and factual, and be respectful to the judge to maximize your credibility.