Order to Show Cause – When the Motion is Heard Before the Notice is Given
In a best-case scenario, a divorce can be negotiated, drawn up, and filed with the parties involved remaining civil. Many divorced couples realize that due to the young children, they are still going to be involved in each other’s lives and for the sake of everyone involved, they put their personal issues aside to keep the peace.
The best-case scenario does not happen often, and it is difficult for many people to put their feelings aside. Even in most cases where former spouses want little or nothing to do with each other, no one’s life is in danger.
Unfortunately, this is not always the case. Last month we discussed how recent changes to the Domestic Relations Law added for the first time that domestic violence is now a consideration during the equitable distribution of marital assets.
Domestic violence is always a concern and cases have significantly increased during the ongoing COVID-19 Pandemic.
New York law allows for a way to act quickly to protect a spouse and children from domestic violence. A concern is that in a family with a history of domestic violence, the abuser will go into a rage when they are served with a divorce petition.
“Motion on Notice”
The usual way to file a motion in the State of New York is called a Motion on Notice. Before a motion will be heard by a Judge, the Plaintiff must serve Defendant eight days before the motion is heard by a judge. The notice is 13 days when the defendant is served by mail.
If this process was followed in cases of domestic violence or other emergency cases, it would mean that eight days would pass before a Judge would hear the case. This delay puts lives in danger.
“Order to Show Cause”
There is a process for making a motion without giving notice. This type of motion is called an “Order to Show Cause.” This alternative motion does not have to wait eight days and can be heard at any time the court directs. In real emergencies, the court may even hear a motion in a matter of hours.
The major difference between a Motion on Notice and an Order to Show Cause is that the former requires the notice before the move and the latter allows for the notice after the motion. The motion is presented to the court “ex parte,” which means that both parties are not present at the time.
Once the judge signs the order to show cause, the Plaintiff is then responsible to provide notice to the other party.
An Order to Show Cause is not always about domestic violence. It can also be related to an action that is taking place that requires timely or immediate intervention by the courts. When the judge hears the case and signs the order, they may include a “Stay,” which is an order to stop an action from happening to maintain the status quo of a situation. In a divorce or at the commencement of a divorce, an action that could prompt a spouse, through their attorney to file an Order to Show Cause can be a spouse attempting to sell a marital property or dispose of assets, such a real estate or investments before the case goes to trial and before the distribution of assets.
Another situation that may require an Order to Show Cause is a spouse is attempting to move out of state, out of the country, or even out of the immediate area taking the children with them before the divorce is started and/or finalized and decisions can be made on child custody and parenting time.
The emergency orders are temporary and are granted until a time called the return date. This is when both parties are ordered to court so they can argue their cases and the Judge can make a decision on the motion that has been filed. The judge may decide to extend the orders or lift the stay that has been placed on the spouse’s actions.
A judge can make an immediate decision or reserve the decision and make a final decision at a later date. The judge has 60 days to make a final decision. If the judge grants the motion, then notice must be sent to the spouse for it to go into effect.
If you are looking to file a divorce, and you either fear for your safety or you believe your spouse is about to take a drastic action that requires legal intervention call the Law Office of Anthony LoPresti at 516-252-0223. With over three decades of Family Law experience, Anthony has a comprehensive knowledge of Family Law which is key to effective representation. Divorce some with its fair share of emotional challenges and at times requires immediate action.
Call us office at 516-252-022 to discuss your case. Do not hesitate, especially when your safety is at risk or time is not on your side.