What is a Motion?

THIS IS NOT LEGAL ADVICE.

In family law, particularly in divorce cases, it’s crucial to understand some of the legal terminology and procedural aspects that are often encountered. One common area of confusion is the distinction between a motion and a petition. This blog aims to clarify these terms and their application within divorce proceedings. A Petition is generally the formal document filed to start a new legal matter; for example, a Petition for Dissolution of Marriage or a Petition to Establish Paternity.

A motion, on the other hand, is a formal request made to the court within an ongoing case. Motions are important in Illinois divorce proceedings. They allow parties to request immediate court intervention for various matters that cannot wait until the final resolution of the case. Its primary purpose is to ask the court to take a specific action before the case concludes. For example, you could request temporary relief such as child support, parenting time, or other temporary relief.

Equally important to a Motion, is a “Notice of Motion,” which is filed simultaneously to the Motion. A Notice of Motion serves two main purposes:

1. Scheduling: It helps in obtaining a court date for the presentation of the motion.
2. Notification: Ensures that all parties are adequately informed about the motion and the court date.

Common Motion Examples:

• Motion for Temporary Orders: This motion requests temporary orders from the court to address issues such as child custody, child support, spousal support (alimony), use of marital property, and payment of marital debts during the divorce process. These orders remain in effect until the divorce is finalized.
• Motion to Compel: This motion is filed when one party believes that the other party is not complying with the court’s orders or requests for information, documents, or responses to discovery requests. It asks the court to compel the non-compliant party to fulfill their legal obligations.
• Motion for Contempt: Also called a “Petition for Rule to Show Cause.” This means that one party is not following an existing court order.  This motion asks the court to hold the non-compliant party in contempt of court and impose sanctions or penalties, such as fines or even jail time, to enforce compliance.
• Motion for Discovery: Discovery is the process by which each party gathers evidence and information from the other party and third parties. A motion for discovery requests specific information, documents, or testimony that the requesting party believes is relevant to the divorce case.
• Motion to Modify: After a divorce decree has been issued, either party may file a motion to modify certain terms of the decree, such as child custody, child support, or spousal support, if there has been a substantial change in circumstances warranting modification.
• Motion for Summary Judgment: If one party believes that there are no genuine issues of material fact in dispute and that they are entitled to judgment as a matter of law, they may file a motion for summary judgment asking the court to decide the case in their favor without a trial.
• Motion to Dismiss: This motion is filed to request the court to dismiss the divorce case. It may be filed for various reasons, such as lack of jurisdiction, failure to state a claim, or settlement between the parties.
• Motion for Attorney’s Fees and Costs: In some cases, one party may request the court to order the other party to pay their attorney’s fees and litigation costs incurred during the divorce proceedings, particularly if there is a significant disparity in financial resources between the parties.

Preparing and Filing a Motion: The Procedure

1. Case Caption. Complete the Case caption and related items so that it gets filed in the proper way with the Clerk of Court.
2. Label Your Motion. It should be clear to everyone reading what you are asking for when they read the title of your Motion.
3. Substance. Provide sufficient background so that the Court and everyone involved understand what you are requesting and why.
4. Prayer for Relief. This is where your formally ask the Court for the relief you want.
5. Verification. Sign the document verifying, under oath, that it is accurate to the best of your knowledge.

NOTE: The Illinois Supreme Court has DIY Forms available if you want to prepare and file a Motion without using a law firm.

The Court Date and Outcomes

Once a motion and its notice have been filed, the court assigns a presentation date. This is the day when the motion is formally presented to the court. Following this, several outcomes are possible:

1. Entering and Continuing the Motion: This means deferring the decision and setting a new court date.
2. Scheduling a Hearing: The court may set a date for a detailed hearing on the motion.
3. Allowing Time for Response: The opposing party may be granted time to respond to the motion.

Conclusion

Understanding the distinction between a motion and a petition is critical in navigating divorce proceedings. While a petition initiates the divorce case, a motion is a tool used within the case to address immediate needs or concerns. By comprehensively grasping these concepts, parties involved in a divorce can better prepare for the legal journey ahead. Reminder, this is for information only and is not legal advice. If you need legal advice, you will need an official engagement agreement outlining the scope of work to be done.