In New Jersey divorce cases, motion practice is an essential facet of the litigation. As a trial attorney, motions can achieve different goals. First, a motion maybe filed during the case (i.e., pendente lite) in order to seek certain relief from the family court. Examples include, but are not limited to, temporary financial support, temporary custody of a child, or a demand for financial documents that one spouse refuses to disclose.
Second, there are motions that are filed after the divorce is over. In the Family Part of the Superior Court of New Jersey, these are known as post-judgment motions. An example of a post-judgment motion would be when one’s former spouse is not complying with the settlement terms of the property settlement agreement, such as failure to pay alimony or child support.
Third, some of the most complex motions in a New Jersey divorce are filed before, during and after a trial. As a seasoned divorce lawyer, I understand that these motions involve great though as to litigation strategy. Let’s take a closer look at two different motions that an attorney should consider at the end of a divorce trial.
What is a motion for summary judgment?
When a party seeks a motion for summary judgment to be granted by the court, he or she is asking the court to enter a judgment against the opposing party without conducting a full trial. Yet, in order to move for summary judgment in the first place there cannot be any disputes of “material” fact. That means that no pertinent facts can be in dispute by the parties, otherwise a trial would be necessary to resolve those facts. It is important to note that summary judgment can be sought to resolve a particular issue or an entire case full of issues.
What is the time for making, filing, and serving a motion for summary judgment? Rule 4:46-1
If a party seeks to move for summary judgment, he or she must wait until thirty-five days after the initial pleading has been served on the opposing party. The purpose of this is to provide the opposing party with sufficient time to process the initial pleading. At this point in time, the opposing party may seek relief in the form of summary judgment as well. Additionally, all motions for summary judgment will be returnable no later than thirty days before the scheduled trial date, unless the court decides otherwise.
What are the requirements to support a motion for summary judgment? Rule 4:46-2(a)
The most important thing to do when moving for summary judgment is to create a list of the material facts, which you believe are genuinely uncontested. Pursuant to New Jersey Court Rules, the moving party must state each material fact as to which he or she believes there is no genuine issue together with a citation to the portion of the motion record establishing the fact. If the moving party fails to file the statement of material facts or fails to cite the motion record to demonstrate that the fact is uncontested, the motion will likely be denied.
What are the requirements to oppose a motion for summary judgment? Rule 4:46-2(b)
If you are the party opposing the motion for summary judgment, you are responsible to dispute each of the material facts in the movant’s statement. Furthermore, if the movant has omitted material facts, which are controverted, you may include those as well to support denial of the motion.
How often are motions for summary judgment granted in divorce cases?
Motions for summary judgment are rarely granted in divorce proceedings. Typically divorce cases will have contested issues of fact. As noted above, in order for a court to grant a motion for summary judgment there can be no genuine issues as to material facts. Since, often times, it is a he said/she said situation in a divorce proceeding, there tends to always been some disputed material facts.
What is a directed verdict?
A motion for a directed verdict, otherwise known as a judgment as a matter of law, is one made once the trial has already begun. However, the moving party believes that a judgment should be rendered midway because he or she claims that the opposing party has inadequate evidence to support his or her case. Although a directed verdict is similar to a motion for summary judgment because it tests the factual adequacy of a claim, it is distinguishable because it is made during the trial, not before.
What is the time for making, filing, and serving a motion for a directed verdict? Rule 4:40-1
Pursuant to the New Jersey Court Rules, a motion for a directed verdict can be made only once the opposing party has presented his or her evidence for the case or once all of the evidence has been presented. Additionally, it is important to note that if a motion for a directed verdict is denied, it does not mean that the right to trial by jury has been waived.
How often are motions for directed verdicts granted in divorce cases?
Directed verdicts are granted more frequently in divorce proceedings than motions for summary judgment. The reason for this is because in a divorce proceeding, both parties are entitled to present evidence to support their side of the story before any judgments will be granted. For instance, if the issue is determining child custody, both parties are entitled to present evidence as to why they should be granted sole custody. If one parent is clearly unfit and has insufficient evidence to show why he or she should be granted custody, the opposing party might motion for a directed verdict to obtain a judgment on the issue. In other words, as most divorce cases are “he said/she said” situations, it is extremely rare that the parties agree on all of the “facts” related to the demise of their marriage.
I hope that after reading this article, you develop a basic understanding of the two different motions lawyers utilize to challenge the sufficiency of facts. To discuss further, please do no hesitate to contact my office today. Thank you.