Phase 4: Legal Motions and Hearings

If attorneys disagree on how to resolve certain matters in the case, they seek decisions from the judge by filing a motion, describing the problem and the requested relief. The opposing attorney may file an objection, called a response. The judge schedules a court hearing, hears each attorney's argument, and makes a ruling (an order) resolving the matter.

Initial hearings may involve requests for temporary support and/or child custody. Attorneys will ask the judge to grant temporary orders of relief. Who will have possession of the home? How much should one spouse pay to support the other until completion of the trial? This is where a good attorney can make your life more bearable, or vice versa. Consider attending the hearing to make sure the judge knows all the facts.

If payment of attorney's fees and costs is a concern, often there is no choice but to secure temporary advances for these fees through the court from the wealthier spouse. But this gives the spouse receiving relief an enormous legal advantage. The wealthier spouse will not want to give someone pushing litigation forward potentially unlimited funds to fight. This also may remove any incentive on the part of the spouse receiving relief to settle the case early. The attorney for the needy spouse may lose the chance for payment, however, if a prompt request for financial relief from the judge is not made. Then lack of funds may force an unfair settlement.

The judge can act on other emergency matters as well. If one spouse secretly tries to dispose of marital property, or if domestic violence exists, the attorneys can set an expedited (or speedy) hearing before the judge. The judge enforces the order by police protection and arrest of violators if necessary. These emergency rulings are temporary restraining orders, temporary injunctions, or orders of protection. But they only provide for punishment of violators after the fact, not before it happens. They do not block a spouse from unexpectedly barging into the home one afternoon, kidnapping children or stealing assets, and leaving the state in a matter of hours. Although law enforcement carries out the judge's commands, too often the real damage is complete and irreversible.

The motion and hearing phase is expensive and time-consuming. Because of the severe backlog in many courts, attorneys may not obtain a hearing that requires extended argument for weeks or even months after their request. To address this problem, many judges set twenty-five or more "short" motions for hearing in quick order one right after another. This is a motion calendar. Sometimes this brings numerous attorneys to the judge's chambers waiting to have their motions heard. To get through the calendar, the judge only allows five to fifteen minutes for each hearing.

Ask your attorney which hearings are critical to the case. Many attorneys fight over technical legal matters or civil rules of procedure that may make little difference to the spouses. Some attorneys spend time filing motions for orders they know are difficult to obtain or perhaps even improper, solely to delay the case. Watch your attorney, and tell him or her not to waste time and money on procedures that do not advance each party's goals.