NAPA FAMILY COURT
Order to Show Cause (OSC)
& Notice of Motion (NOM)
A motion is the means by which a party to an action requests a court order. Written motions are filed either as an order to show cause or as a notice of motion. Motions may be made before trial, during trial, or after the trial has concluded. Most pretrial and post-trial motions are written, but it is common to make oral motions during a trial. Motions must somehow relate to the divorce case and be a request for something that cannot wait until trial. A motion requesting something that is outside the scope of the pending divorce will be denied, as will a motion that requests something that is properly decided at trial.
1. The Components of a Written Motion
All written motions will generally consist of three sets of papers
(a) A motion itself will generally consists of the following:
- A notice of motion or the order to show cause, which contains the caption of the case, the court where the motion will be made, the date and time of the motion, and what the motion is seeking
- For an order to show cause only, any ex parte court order,
- For an order to show cause only, the manner of service as ordered by the court,
- The party's affidavit, which is a sworn statement which provides the factual reasons for the motion.
- The attorney's affirmation which contains any factual statements known by the attorney. Many attorney's affirmations also include supporting case law, although technically that should be submitted as a memorandum of law.
- Any exhibits in support of the motion. Exhibits are used to help cooberate the facts stated in the movant's affidavit. (i.e. - canceled checks for proof of payment, etc.)
(b) The affirmation in opposition will consist of :
- The party's affidavit, which responds to the claims made in the motion. Should the party wish the court to issue an order on its behalf, a cross motion is necessary.
- The attorney's affirmation
- Any exhibits use to support the affidavit.
(c) The reply will consist of
- An affidavit if necessary
- An affirmation if necessary
2. Notice of Motion (NOM)
A notice of motion will contain notice of the date of the motion, the location of where the motion will be made, and the relief sought. The side making the motion picks the motion date, subject of course, to any local rules. Service of the motion must be made at least eight days prior to the return date. Service by mail is permitted, but an additional five days is added if mailing is used.
3. Order to Show Cause (OSC)
An order to show cause is similar to a notice of motion, in that it can request the exact same relief as a notice of motion. It differs in that the party bringing the motion by order to show cause can submit the motion to the court before the motion is served on the other side. This is generally the only way one side can communicate with the court without the other side being present. In addition, an order to show cause can request that the court issue an temporary order before the other side responds. Order to show cause is often used when time is critical, such as when a child is in danger of being removed from the jurisdiction, or when a decision is needed faster than a notice of motion, such as temporary child support or temporary maintenance.
4. Cross Motions
A cross motion is a motion that is filed only in response to an existing motion, and is made returnable the same day. Three days notice is required to make a cross motion. The relief sought need not be related to the initial motion.
5. Types of Motions and Various Relief
(a) Pendente Lite Motions
Pendente lite motions are brought to obtain temporary pre trial orders of support, custody or any other relief. As these motions are made on an expedited basis, and not all relevant facts are known, whenever practical, they try to maintain the status quo until a final determination can be made at trial. Typical pendente lite motions will request one or more of the following:
- temporary custody of minor children
- temporary visitation of minor children
- temporary child support
- temporary maintenance for a spouse,
- temporary exclusive occupancy of the marital home,
- temporary orders of protection ,
- interim awards of counsel fees ,
- interim awards of appraiser or expert fees
- restraining orders to freeze marital assets.
A pendente lite motion which requests either child support or maintenance must include a statement of net worth as an exhibit. This is required even if the statement of net worth has been filed separately.
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