Procedural Versus Substantive Motions in Family Court

Stange Law Firm, PC

In a divorce or family law matter, various kinds of motions are usually filed as part of a case. Those who are going through a divorce are often confused about the nature of these motions. Confusion can also take place as to how these motions are heard and resolved.

When individuals spend money on legal fees for filing motions, most want to know how courts resolve these motions. They also want to know whether a judge will require an evidentiary hearing.

Laws and procedural requirements vary by state. Different locals and judges can also handle procedural or substantive motions differently. But as a general rule, there are some common takeaways in terms of analyzing how procedural and substantive motions are heard and resolved.

Difference Between Procedural and Substantive Motions

As a starting point, it is essential for individuals to differentiate between procedural and substantive motions. Procedural and substantive motions often go down two different paths regarding how they are heard and resolved.

Procedural motions typically address legal matters before the court. Thus, these motions are much more about the legal process itself rather than substantive relief.

Substantive motions are when a party asks for the court to order something significant about the parties’ lives. For example, the motion could involve child custody, child support, property issues, or other substantive matters.

Examples of Procedural Motions

There are lots of procedural motions a lawyer can file in the family court. The possibilities are vast in number. To give a few examples, it could be that a lawyer files a motion to compel to order the other party to produce documents or discovery responses in court. Additionally, it could be a motion requesting a continuance of a trial date. It could be a motion requesting that specific evidence not be allowed at trial.

In terms of how these motions are heard, procedural motions normally do not require an evidentiary hearing. There are situations where that might not be true. But in most instances, the judge reads the motions. The lawyers then present oral argument to the court. The judge then makes the decisions without a hearing where parties’ testify.

Examples of Substantive Motions

On the other hand, substantive motions address the lives of the parties. It could be a motion for a temporary custody order during a divorce. It could be a motion for child support or spousal maintenance while the case is pending. It could involve a request for one party to be removed from the marital home.

In terms of how these motions are heard, judges do normally require an evidentiary hearing for these kinds of motions. There might be situations where a judge does not require it. In some instances, the parties might agree to submit it on the motions itself or with affidavits. But generally speaking, these kinds of motions require a hearing. A judge cannot, in most cases, simply render a ruling without an opportunity for a hearing.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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