What can I expect for my motion hearing in my divorce?
What can I expect for my motion hearing in my divorce?Your divorce is filed and you have a motion hearing scheduled. You may have that uneasy feeling in the pit of your stomach. How does this work? What do I have to do? Am I going to have to speak?
For people who are going to court for the first time, this can be especially difficult. But even if you’ve been to court before, it’s still not a pleasant experience.
The first step is to actually understand how the event works. Having a firm grasp on how the process unfolds and what you can expect can significantly decrease uncertainty, which will likely decrease your fear. Being more relaxed will allow you to focus on the key issues in your case and on helping your attorney get you the best result.
In most counties in MA, the first step when you arrive at courthouse for a motion hearing is to find the courtroom to which your case is assigned. If you don’t have this information in advance, you can ask either security or other court staff located near the courthouse entrance.
Once you arrive at the courtroom, you or your attorney must check in with the assistant judicial case manager. This is the person who typically sits near the judge’s bench.
The next step may be mediation. Every family court has a probation department that’s assigned the task of helping the family court to resolve issues. In some courts, a mediation session is required whether or not the parties have counsel. But in other courts, if both sides have counsel, mediation is not mandatory. The goal is to force the attorneys and the parties to talk and work through the issues and resolve as much as possible before using court time.
During a probation mediation session, both sides have an opportunity to represent their respective positions to the probation officer. The probation officer then asks questions, narrows the issues, and at the end of the session, typically makes recommendations.
If the parties agree to the recommendations, they can sign a stipulation (agreement) on the agreed-upon terms. The stipulation is then sent to the judge’s assistant for processing. If the parties are in agreement on all issues, either the judge’s assistant or the judge will review the agreement, determine whether it’s fair, and if so, approve it. If there are any terms still under dispute, the case will be called for hearing.
Once the case is before the judge, each side has an opportunity to present arguments to the judge. The judge will likely ask some questions during the hearing. At the end of the hearing, in some cases, the judge will announce a decision on the spot. However, the judge usually will not make a decision immediately from the bench. Instead, the judge may take the case “under advisement,” meaning a decision, usually in the form of a “temporary order” will be mailed out to the attorneys and/or parties later.
A temporary order stays in place pending further order of the court, agreement of the parties to change it, or finalization of the case.
Motion hearings are important not only because they provide an opportunity for a temporary order, but they also establish a precedent for how the disputed issue will ultimately be resolved. If there aren’t significant changes between the time the order is entered and when the case is resolved, it may be difficult to convince a judge to change the order. Therefore, it’s essentially to get the best possible result.
Therefore, whether before a probation officer for mediation or the judge for hearing, it’s critical to ensure your case is presented effectively. If your presentation is not persuasive or you missed key points and the mediator makes recommendations favoring the other side, those recommendations are typically sent to the judge. And of course, if you’re before a judge, lack of proper preparation and/or the skills necessary to effectively persuade are at least as dangerous.
An important consideration when planning for a motion hearing is whether you should be represented by divorce lawyer. The best way to analyze this is to do a risk/benefit analysis. The first question is how much is at stake? If you have significant money on the line (for example on support or an issue with an asset of significant value) or an issue involving children, you may want to consider investing in advice from a reliable lawyer. You can then compare the value of the contested item with the cost of legal services to determine whether to hire and attorney and how much you want to invest.
If you have any questions about motion hearings or divorce in general, feel free to contact us.