A motion is a request made to the court asking a judge to make a decision about your Virginia divorce case. Motions can be requested orally in court, but today are more commonly requested in writing. You may hear the terms movant or moving party, which are used to describe the party requesting the motion. The party opposing the motion is commonly called the nonmovant or nonmoving party. When a motion is made the judge will either grant or deny it. Motions play an important part in all areas of the law and can have a significant impact on the outcome of your divorce. In fact, there are a number of motions that specifically address divorce, support, and custody. Below are some of the more common motions that you may be exposed to during your divorce.
Motion for Pendente Lite Relief
Pendente Lite is a Latin term that means pending the litigation. In the context of your divorce, pendente lite relief allows you to ask the court for temporary relief (such as financial support and exclusive use of the marital residence) before your divorce is finalized. It is important because it can create some stability and continuity in your life (to know how/who will pay what bills) as you go through the process of obtaining a divorce. In Virginia, the law provides eight forms of pendente lite relief that can be requested during divorce. You or your spouse may ask the court: (1) to order a spouse to pay the other spouse upfront monetary support, (2) for one spouse to pay for the other’s health insurance, (3) that a spouse pay debts whether they were incurred jointly or separately, (4) that one spouse pay for the other’s attorney’s fees, (5) to award a spouse custody and/or visitation of children, (6) to award a spouse child support, (7) to give one spouse exclusive use of the family residence, and (8) to stop the use of accounts or assets owned by either spouse.
You are not limited to asking for one form of pendente lite relief and you can ask for as much as necessary in your specific situation. While pendente lite relief can be requested in a motion, it can also be asked for in the divorce complaint. After the complaint is filed a hearing will be scheduled to determine what, if any, pendente lite relief is granted.
Motion to Compel
A motion to compel is used to address discovery requests that are either not answered, or insufficiently answered. In discovery when you request certain information relevant to the divorce it is possible that your spouse will not respond, or will not give you all of the information you asked for. A motion to compel will ask the judge to force your spouse to comply with the discovery request. Eventually repeated motions to compel can lead to sanctions if your spouse continues to be unresponsive.
It is important to note that discovery deadlines are not as strict as others imposed by the court. Sometimes it takes longer for one party to obtain all of the information necessary to comply with a discovery request. Also, the party that submits discovery requests first will want the other party’s answers before providing their own, even if it means being late. Motions to compel can be used in these scenarios but are generally more appropriate when your spouse is purposely withholding information for a strategic advantage.
Motion for Notice of Deposition of Expert Witnesses
It is possible that your divorce case will require you or your spouse to use an expert witness. Expert witnesses come in many forms. For instance, a vocational expert can explain your ability to earn income after the divorce. A real estate expert can be used to value the martial residence or any other property obtained by you and your spouse during the marriage. A financial expert can evaluate the value of a business owned by you or your spouse. These are just a few examples of the roles experts play in divorce proceedings.
If your spouse chooses to use an expert we can file a motion that will require their expert to provide any information they plan to use during their deposition. Essentially, this allows us to see what they will say prior to the deposition. This information can be helpful in preparing for the deposition and can also be used against the expert witness if they provide any inconsistent testimony. These motions are particularly important due to the increasing use of depositions that are agreed to in the pre-trial order.
Motion to Seal the Record
If you do not want the details of your divorce to become public, you may ask the court for a sequestration of the record. This would seal the record of your divorce and any agreement between you and your spouse. If the motion is granted the information would only be accessible by you, your spouse, the attorneys involved, and anyone the judge determines to have a “proper interest.”
Motion to Value Assets at a Specific Time
Normally in a divorce the assets are valued as of the date of the divorce trial. However, you may choose to file a motion that requests the court use a different valuation date. For instance if you are aware that your spouse intends to withdraw money from an investment account and spend it prior to the divorce trial, you would want the court to value the investment account at an earlier date when it had value. In a situation like this the court would find that there is “good cause” to use the earlier valuation date. As another example, a motion could be made to value and divide a retirement account on the date of separation, not the date of the divorce hearing.
Petition for Judicial Settlement Conference
Virginia offers a Judicial Settlement Conference Program that is a confidential process in which you and your spouse can meet with a retired judge acting as a neutral third party to discuss settlement options. Attorneys are required for this program in order to file forms and briefs in advance of the conference that provide the judge with the relevant information. The judge will not make any binding decision in this situation, rather the judge guides you and your spouse to a mutually satisfactory resolution.
Judicial Settlement Conferences can be useful forms of mediation if you and your spouse are having difficulty reaching a settlement. The only downside is that the program operates on the schedule of the retired judges, which means it can take a while to schedule the conference, typically within 90 days.
Motion to Modify the Final Divorce Order
Once a divorce is granted the court will enter a final order of divorce. In some situations it may be possible to modify the terms of the divorce with respect to child custody and visitation, child support, and spousal support. It is important to note that the court where the divorce was granted retains jurisdiction over the terms of the divorce. For example, that means if your divorce was granted by the Williamsburg/James City County Circuit Court your motion to modify the final divorce order would be filed with that court.
Generally any time you seek to modify child custody and visitation, child support, or spousal support you will have to show that there has been a material change in circumstances that necessitates the modification. For issues of custody and visitation you will also need to demonstrate that the change is in the best interests of the child.
Va. Code Ann. § 20-103
Va. Code Ann. § 20-124
Va. Code Ann. § 20-107.3
Va. Code Ann. § 20-108
Va. Code Ann. § 20-109