A Notice of Motion and Affidavit

You may want a court order giving you custody and child support or the use of your home, a car, a bank account, or some other relief during the divorce. Unless you and your spouse can negotiate the terms of this order, you'll need to prepare a motion asking for these things and explaining why you need them. A Notice of Motion is a legal document, prepared by your lawyer, that says to the court and your spouse that you are going to ask for certain relief from the court on a specified day and time. If you need immediate relief, your lawyer will file an Order to Show Cause (discussed later in this chapter), which can include a request for temporary orders that govern the parties' behavior until the time of the hearing.

You must attach an affidavit to your Notice of Motion, which is a sworn statement your lawyer will prepare based on the facts you provide. The affidavit tells the court why you need the relief you're seeking. Your lawyer may also prepare an affidavit, sometimes called an affirmation, if there is information the lawyer has obtained or certain law that the court should be aware of that supports your request.

Persuading the Judge

You'll want to tell the judge the things you believe will persuade him to do what you want. For instance, if you have school-age children, you might tell the court you want them to live with you in the family home to minimize the disruption to their lives and allow them to attend the same school, play with their friends, and participate in their neighborhood activities. You might say you need the newer, bigger car to transport them safely and you need the bank account to pay the monthly household expenses.

If you and your spouse disagree about a parenting arrangement — temporary or permanent — you'll need to make a motion asking a judge to decide. You'll need to prepare an affidavit explaining why your proposed arrangement is best for the children.

In making your proposal, be sure to think of what will be best and least disruptive for the children. If you and your spouse live far apart, the judge will probably try to avoid sentencing the children to life as commuters and minimize the number of exchanges during the school week.

It's important to tell the judge in this affidavit how the children have been cared for up to this point, because judges tend to maintain the status quo for children. If you've been their major caregiver, say so; if you haven't been, then you need to present a very strong case for making the change. Be reasonable. If your spouse has always been the primary caregiver for the children, don't try to change that now just to upset your spouse. Changes will also upset your children. If your spouse has been more of an occasional parent because of her work schedule, don't try to force her into taking on more than she can manage just because “it's about time” she took an interest. Your children will be the ones to suffer having to deal with an exhausted parent who is unfamiliar with their routines.

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  4. A Notice of Motion and Affidavit
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