I recently read a quote from Joseph Addison, an eighteenth century British author, which said, “Husband a lie, and trump it up in some extraordinary emergency.” It lead me to consider how family law attorneys categorize the notion of an emergency, often with a mixture of histrionics and hysteria, in contrast with how the rest of the world does.
In the world of family law, emergencies are governed almost exclusively by the filing of the well-conceived and ill-named Order to Show Cause. R. 4:52-1 of the New Jersey Court Rules governs the filing of an Order to Show Cause in most scenarios in Family Court, when we are seeking temporary restraints or injunctive relief. It addresses the standard for filing an emergent application, which we all know by heart by now is, that immediate and irreparable damage will probably result to a party or the parties’ child(ren), unless an Order is entered immediately.
As a former law clerk and current family law practitioner, I have a unique perspective on both the utilization and exploitation of the Order to Show Cause.  What was designed to ideally be filed judiciously and to address genuine emergencies is habitually used as a litigation tool to get our clients the instant gratification that they far too often seek. Fittingly enough, these applications filed to presumably accelerate a divorce proceeding often become the ultimate double-edged sword.

Continue Reading A Day That Will Live In Exigency: The (Over) Use Of the Order to Show Cause

When a client comes in for a first meeting for a divorce consultation, it is often when things at home has reached a crisis whether it be financial, or something having to do with the children. Although a divorce, start to finish, can last more than a year in the Courts, there are remedies available to assist  litigants with more immediate issues that come up. 

After an initial complaint for divorce is filed and served, litigants can proceed to Court on a Motion for an Order regarding those issues which need to be resolved pending the end of the case.  These may include interim custody, spousal and child support, restraints against asset dissipation, insurance coverage, payment of counsel fees, etc. In divorce cases, this is known as a “pendente lite Motion.” Some cases do not require pendente lite Motions while other cases may require numerous pendente lite Motions. A Motion is made up of Certifications (the same thing as an Affidavit) from you and the opposing party and oral argument by your attorney and the opposing attorney; sometimes, legal briefs are also filed with the Motion. Often, your attorney will have very little time within which to respond to a Motion or Cross-Motion filed by the other side. After these papers have been filed, the case is usually then heard by a judge on a Friday at what is known as “oral argument.” This is when the attorneys go to Court to argue the motion, but the litigant will not testify. By their very nature, pendente lite motions are not an exact science as they are usually filed before there has been substantial discovery of all the information necessary to make a final decision. However, they are a way to obtain relief from the Court in a short time period and the issues can be revisited when appropriate as information comes through.

If a true emergency exists, your attorney may recommend the filing of an “Order to Show Cause” which can be heard by the Court the same day as it is filed; however, there will thereafter be a “return date” for another oral argument to give the opposing party a chance to file papers and argue their side.  

It bears mentioning of course, that not all cases require a pendente lite Motion. In some cases, the attorneys can work out the issues between themselves with their clients’ assistance. It is often better to reach an amicable resolution of your issues than to file a Motion, as it is generally less costly both in terms of fees and emotions