Cross-Motions In Divorce

By Jim Thomas

Cross-motions and motions are as inseparable as macaroni and cheese -- a cross-motion in a legal proceeding is a response to a motion. Motions are a request for a court order and can be made before, during and after a trial. Either party can file a motion asking a family law judge for an order relating to issues involving custody, visitation, child support, spousal support or restraining orders to keep the parties apart during the divorce process. The opposing party has the right not only respond to the motion, but also to ask for its own court orders in its cross-motion.

Cross-motions and motions are as inseparable as macaroni and cheese -- a cross-motion in a legal proceeding is a response to a motion. Motions are a request for a court order and can be made before, during and after a trial. Either party can file a motion asking a family law judge for an order relating to issues involving custody, visitation, child support, spousal support or restraining orders to keep the parties apart during the divorce process. The opposing party has the right not only respond to the motion, but also to ask for its own court orders in its cross-motion.

Content

A motion includes the request for relief -- which is what the party wants the court to do -- as well as any facts relating to the request, legal support for the request and relevant exhibits. The opposing party filing a cross-motion responds to the claims with similar materials. The party filing the motion has an opportunity to reply to the cross-motion before the judge issues his ruling. Judges can grant either a motion or a cross-motion.

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Temporary Motions and Cross-Motions

Motions and cross-motions made before and during the trial often ask for interim relief before the divorce is finalized. For example, if you want to make sure your spouse is not selling off marital assets, your attorney would file a motion asking the court to prohibit him from doing so. In response, his attorney might file a cross-motion asking you not to sell any of the jewelry he bought until the court divides the marital estate. During the trial, there are often motions and cross-motions to compel the other party to produce evidence and motions for a dismissal of the case.

Post-trial Motions

After the court trial is concluded, parties can file motions and cross-motions for modifications of the judgment and for the enforcement of the judgment if one side doesn't comply. A motion and cross-motion can also be filed to stay, or postpone, the court's decision or request the court take the decision under advisement if new evidence has come to light, on grounds the new evidence might be powerful enough to result in a different verdict in the case.

Considerations

There has been some confusion in some state courts over the right to file cross-motions that go beyond the scope of the motion. In New Jersey, for example, courts were divided about expanding the scope of cross-motions until a case in 2009, decided by the appellate court, restricted a cross-motion to the subject matter of the original motion. However, as a practical matter, it makes little difference. Even if you are in a state that restricts cross-motions to the subject matter of the motion, you can file new motions of your own to get issues heard that are outside the scope of the opposing side's motions.

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References

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