In the majority of circumstances all motions must be in writing. Ordinarily, the “motion papers” to be filed with the court and served upon the other party include the notice of motion, supporting certification or affidavit, legal argument in the form of a legal brief or letter memorandum, and proposed form of order. The Rules of Court contain specific requirements as to all papers to be filed with the court – for example, all papers must be prepared on 8.5” x 11” letter-sized paper, with double-spaced 10 or 12-point font, be within the applicable page limits, and must be signed and dated by the attorney of record or a pro se party.
If a motion does not rely on facts already in the court’s record, it must be supported by affidavit or, as is more common, a supporting certification. An affidavit or certification must be made on personal knowledge, and must not contain improper matter – for example, the certification must comply with the rules of evidence (hearsay, privilege, etc.). The affiant must sign and date the certification after inclusion of the following statement: “I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment.”
Because motion practice can be expensive, it is important (in non-emergent matters) to make every good faith effort to resolve all contested issues prior to seeking intervention of the court. Furthermore, it is essential to ensure that your application has adequate support in the law prior to filing. Motions without sufficient legal basis, as well as motions made in bad faith, can result in an award of attorney fees and costs to be paid by you to your adversary. Accordingly, you may wish to consult with an experienced family law attorney if you are considering making application to the court. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.
Justin M. Smigelsky, Esq., 2014, all rights reserved