Motion Mastery Part I • Your Divorce Case
In part 5 of the Your Divorce Case series, Seth and Pete dive deep into the world of motions in divorce law. They explore what motions are, why they matter, and how the right move can dramatically impact your case.
Seth and Pete break down the different types of motions, from motions to compel and for contempt, to emergency motions and motions for temporary relief. They discuss the requirements and strategies for each, sharing insider tips on how to effectively present your case to the judge in the limited time you have.
Questions we answer in this episode:
What are motions and why are they important in divorce cases?
How do I get a hearing scheduled for my motion?
What types of motions are common in divorce proceedings?
Key Takeaways:
Motions are requests for the court to take action before the case is finalized
Thoroughly prepare for your motion hearing as time with the judge is limited
Understand the specific requirements and procedures for different types of motions
Whether you're seeking temporary alimony, exclusive use of the marital home, or enforcement of a prior court order, this episode arms you with the knowledge to confidently navigate the maze of motions in divorce court. Seth and Pete's expert insights and practical advice make this a must-listen for anyone facing divorce litigation.
Links & Notes
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Pete Wright:
Welcome to How to Split a Toaster, a divorce podcast about saving your relationships from TruStory FM. Today on the show, a body in motion stays in motion.
Seth Nelson:
Welcome to the show, everyone, I'm Seth Nelson. And as always, I'm here with my good friend, Pete Wright. Today, if divorce is a chess match, motions are your power plays. Okay, guys, Pete wrote that. That's not really the case, but I had to read it. It sounded so good, okay? And chess matches don't really have power plays.
Pete Wright:
I don't even know. I don't know much about the law or chess. All I'm saying is I need to set the bar low for my participation today.
Seth Nelson:
Okay. Okay. But he is right, we are talking about requests to the judge for everything, from who gets the dog to who pays the bills, all while happening before the case is closed. You have to think of motions is things that you need done before you're finally done. Okay? So we're going to take a deep dive into the world of motions and divorce law. What are they? Why should you care? And how can the right move change the entire case? So let's get started.
Pete Wright:
Okay, first question. We covered last week, the petition for dissolution of marriage, the pleading, right?
Seth Nelson:
Yep.
Pete Wright:
So the petition, the answer, the counter petition, the answer. Now we're moving into preparing for court and court. This is all motion territory, right?
Seth Nelson:
That's right.
Pete Wright:
Okay.
Seth Nelson:
That's right. In fact, think of the pleadings as what you're asking for the court at trial. Think of motions of what you're asking for the court in between.
Pete Wright:
Okay.
Seth Nelson:
Okay?
Pete Wright:
Yeah, I need some examples.
Seth Nelson:
Right. Right. So what are they and why do we care? So first off, motion. There is literally in the law called motion practice. Something like lawyers in litigation, it's a motion practice. You're always going to court. You're always asking them to do something. Okay. So what is it? Why do we care? It's asking the court to move, to motion. What are you asking the judge to do? In my view, to keep it simple, you're asking the court to sign an order. The motion is the signing of the order.
Pete Wright:
Oh, okay. All right. I can relate to that.
Seth Nelson:
You want that order that's above the judge's signature to be in your favor. So when you file a motion, your ultimate goal is that the motion is granted. The judge agrees with you and says yes. What you don't want if you're the filer is for the motion to be denied. The answer is no, granted and denied. And of course, in motions you can ask for more than one thing, so gives the judge another choice: granted in part and denied in part. So last week we talked about a kid going to an ice cream store and asking for everything parent says no, but you can have one scoop, not two scoops. Okay, so in a motion, let's just stay in that ice cream store.
Pete Wright:
I'm still there.
Seth Nelson:
... I'm asking for two scoops of ice cream in a cone with sprinkles and the judge says, "No, but I'll grant you two scoops in a cone no sprinkles." Granted in part?
Pete Wright:
Granted in part.
Seth Nelson:
Denied in part.
Pete Wright:
Okay you said a motion is something where you want the court to move. You want the judge's hand to move, to sign on the line, which is dotted. What is the scope of action we're talking about? Just things the court does for you or things that you want to happen on behalf of... like I'm filing a motion because I want the opposing counsel to make sure they wear red on Friday?
Seth Nelson:
That's going to be denied, so let me be clear. Everybody knows we wear blue on Friday.
Pete Wright:
Noted.
Seth Nelson:
Okay, so let's give some examples. In Florida family law, in Hillsborough County, when you file your pleading, your petition, you have 45 days to, and everyone gets served with it, and I'm not going to go into the service of process now, but the clock is ticking. You have 45 days to produce what's called mandatory disclosures, which is a very long list of documents that we've covered and we're going to cover again to refresh people's recollection on financial documents you have to provide to the other side unless there's an agreement that you both say, "We don't have to do it," tax returns, bank statements, 401k statements, your credit report. 45 days goes by, you can do a motion to compel, "Judge, I want you to order them to do what they were already supposed to do."
Pete Wright:
Okay. Compel, force them to act.
Seth Nelson:
Make them act, motion to compel. Now same documents we're looking for, but now you've gone to a case management conference, and at that conference the judge goes, "Where are we on mandatory disclosures?" I going to say, "Judge, we've done all of our mandatory disclosures, we filed our certificate 30 days ago, we haven't gotten one piece of paper from the other side." And the other side goes, "Judge, they didn't give us everything." And the judge at a case management conference might have 15, 20 cases all being heard in a half hour. So the judge isn't going to get into "Counsel, what didn't they provide? Right? The judge is going to say, I'm not dealing with this today to figure out who did what, but here's what I'm going to do. You guys are ordered to comply with mandatory disclosures 20 days." So now there's an order. No motion's been filed. 20 days goes by, they still don't produce it. Okay? Now I file a motion for contempt and enforcement.
Pete Wright:
Because they have been compelled already-
Seth Nelson:
Nope, the court-
Pete Wright:
Oh, no.
Seth Nelson:
Don't worry about the motion to compel. We just go to a case management conference and the judge says, "20 days, get it done." 20 days go, as they don't. I said, "I filed a motion, Your Honor. There's a court order on February 1st ordering us to have full mandatory disclosures by February 21st. They have not filed anything. I am asking for a motion for contempt of court because," and this is what you need to prove contempt, "they had the ability to comply or they knew there was a court order. They had the ability to follow that court order and they failed to do so. They should be held in contempt."
Pete Wright:
Okay. Held in contempt and the other word you used was?
Seth Nelson:
Motion for contempt and enforcement. So not only do I want you to tell them, "You knew about it, you could have done it and you willfully failed to do it. You are now in contempt. So what? So now I want you to pay my attorney's fees as a sanction, and I want you to enforce, make them do it." And then the judge is going to say, "Okay, you've got 10 days more." They give them another bite, but then they say, For every day that you are non-compliant, I'm going to fine you $100."
Pete Wright:
Okay.
Seth Nelson:
Okay. They've upped the ante now.
Pete Wright:
Okay. Is it really $100 or are you just saying that to stay in the ice cream territory?
Seth Nelson:
No, I've had it, 100 bucks a day.
Pete Wright:
Okay. Okay.
Seth Nelson:
Some's been 50, right?
Pete Wright:
Okay.
Seth Nelson:
But why? Because back to my motion, and this relates back to pleadings, relates back to the ice cream store. In my motion I said, I'm going to just do the motion for contempt enforcement. There was an order, they knew about it. They had the ability to comply. They willfully did not comply, and I want the following: I want them to produce it immediately." Judge gives them 10 days. "I want them to get a fine for every day that they're late of $100. I want them to be sanctioned to pay my attorney's fees." And I come to court saying exactly what my fees are, saying what my hourly rate is, saying that it's reasonable in this county and it's been awarded for me that my rate is reasonable and the amount of time that I've spent in is a reasonable amount of time. And I'm asking for it as a sanction because then as a punishment, I don't have to prove that they have the ability to pay it. It's punitive.
Pete Wright:
That was going to be my question. How do you know if they have the ability to do anything?
Seth Nelson:
I don't because they haven't produced their financials yet.
Pete Wright:
Right. But one of the things you said was they had the ability to produce their documents and they didn't do it. And I'm wondering that's another ability to do something, how do you know?
Seth Nelson:
Well, I'm going to like the case that there's an order, they've been going to work every day. They've been spending time with the kids on Saturday. They've done this, this and that. They have to come to court and say, "Judge-
Pete Wright:
"We're so busy."
Seth Nelson:
Right. That's not going to cut it. They're going to say, "Judge, I was in a car accident. I've been in the hospital for the last 20 days."
Pete Wright:
Yeah.
Seth Nelson:
Okay. You don't have the ability then. I'm not filing the motion then. Okay. So here's the thing. Think of all the things that has to happen to get there, 'cause that's what a motion is. You're asking the court to do something. But Pete, there's requirements that you have to do before you go to court. You don't just get to file a motion and necessarily go straight to court. Some you do, some you don't. Depends on the motion. It depends on the rules. It depends on the local rules. It depends on that judge's preferences. So there's a lot of information out there that you have to find to figure out what, if anything, do you have to do before your motion goes to court.
Pete Wright:
Okay. Does that imply that there are different context-sensitive kinds of motions that you actually will file, some that require you to do a whole bunch of research and figure out if you have everything in place before you file a motion and some that are, "I just want to file a motion today?"
Seth Nelson:
Yes, 100%, perfect. Motion today, emergency motion.
Pete Wright:
Oh, well, I could have probably figured that out.
Seth Nelson:
Right, but emergency and what you and I think is emergency and what the court and the case law think is emergency are much, much different.
Pete Wright:
Oh, how so?
Seth Nelson:
Emergency for kid issues is, and there's a case in Florida called Smith v. Crider that basically says, and I'm paraphrasing here, it's got to be intimate. It's like it's happening now. It is bad. Something really bad is happening and it's detrimental to the kids. A parent withholding time-sharing is not an emergency. You're missing your time. They're with the other parent, right?
Pete Wright:
Yeah, but I can certainly see how it feels like an emergency.
Seth Nelson:
Right. A parent that is about to get on a plane and leave the jurisdiction in violation of a different court order from a domestic violence injunction with the kid. That's an emergency. That kid might not be coming back from a foreign jurisdiction like leaving the country.
Pete Wright:
Reflecting on a past episode of Greyson's Law.
Seth Nelson:
Yes. Yeah, scary stuff.
Pete Wright:
Scary stuff. That would've implied emergency.
Seth Nelson:
A lot of violence towards kids, mental health issues, emergencies. Okay. Motion for temporary relief. This is a big one. What is temporary relief? Well, when you go to court and you ask for something, the formal term is I'm asking for relief. When you say it's temporary, while the case is pending. So let's just do it this way. You're a stay-at-home mom. You're not in the workforce. You work hard every day with those kids, but you're not in the workforce with gainful employment and your spouse cuts you off financially. Cuts off the credit cards, isn't paying the bills, is trying to bleed you out. You can file a motion for temporary relief and say to the judge, "While the case is pending, I'm asking for temporary alimony. I'm asking for my soon-to-be former spouse to pay my attorney's fees. I'm asking for a temporary parenting plan, and I'm asking for exclusive use and possession in the marital home. I don't want him here.
I have no money, I can't go anywhere else. He's got money, he can go get an apartment. He can get a three bedroom. We have a three-bedroom house, it'll be a little smaller, but the kids can still go over on the parenting plan I'm suggesting." In Hillsborough County, you don't get to just set that for a hearing. That judge is going to send you to mediation first, and the judges on a lot of motions might send you to mediation first. Also, on a temporary relief hearing, there is a local order, administrative order that says all the stuff that you have to file in court in exchange with the other side so many days prior to the hearing, such as financial affidavits, such as a temporary parenting plan. You've got to let people know what you're asking for and how you're going to support it.
Pete Wright:
Which it seems like if you're in a situation where you need temporary relief, that, again, to you is probably an emergency.
Seth Nelson:
Right, but not under Smith v. Crider.
Pete Wright:
Okay.
Seth Nelson:
That's right. And now what you got to do is you go to court and you say to the judge, "I need three hours." Good luck getting three hours on the judge's calendar, and it's not their fault. They have 750 cases, so, "Okay, I can get you three hours in four months." That's a lot of time. "All right, judge, I'll take an hour." And then you go to court and you've got to be clear, "Judge, I needed an hour for temporary relief and I want you to hear my case." And you, think about this, you only get a half hour 'cause the other side gets a half hour, and I just covered a parenting plan which has 20 different factors that you're supposed to go through?
I'm going to cover use of the house. I'm going to cover financial issues. How do you get that done in 30 minutes? So one way is if the other side agrees, you can what's called proffer, and we're going to talk about proffering and testimony when we get to trial. But just briefly, it's where the lawyer says, "Judge, here's what we think the evidence will show. This is why we should get X, Y and Z." And then the other side gets the proffer, then judge makes a decision or maybe it allows you to ask some questions of the witnesses.
Pete Wright:
So what is the weight going into this of the other side saying, "Okay, we're just going to agree because we know what this looks like and we know we'll probably lose, so let's just move this forward?" Does that ever happen?
Seth Nelson:
It happens not often.
Pete Wright:
Okay.
Seth Nelson:
If you're bleeding them out, you have a client that's not being reasonable-
Pete Wright:
That's strategy, yeah.
Seth Nelson:
... right? That lawyer better be saying, "Hey, there's a standing order that says keep the status quo. You're not complying." But on the motion, the point is there's a lot of things you have to do before you get to court. And so after you file your pleadings, your next question to your lawyer is, "What's the next step? How do I keep moving this forward?"" And there will come a time that it happens from time to time in our office where a client says, I feel like this isn't moving forward. I don't know what's going on. I've been with you for six months, I've spent all this money." And then I just say, "Okay, let's slow down," and they're like, "I don't want you to slow down. I want you to speed up."
I said, "No, no, I'm going to slow down. I'm going to review your entire case. I'm going to give you an entire case outline and strategy on where we're going, make sure we're on the same page." But what happens is then something else happens with the kid and it changes. So motions, emergency motion, something really bad happening right away, get into court. The judge might grant that motion without letting the other side even say anything. But then they'll give them 14 days and within 14 days you'll come to a court so they can have their opportunity to be heard. Temporary relief might take longer.
Pete Wright:
Are there other kinds of motions that we need to know before we move forward?
Seth Nelson:
I've got a lot of them, but what else do you want to move forward to?
Pete Wright:
Well, I want to know, you just gave me two, I think, ways that you're going to get heard by the judge, heard by the court. One is you're going to get time on the court docket, you're going to go to court. Another is the judge is going to read it and sign it and say, "Yeah, approved. Motion granted."
Seth Nelson:
They can do that. It's very rare. They usually will allow you to have a hearing.
Pete Wright:
Okay. So that's the general workflow here. You file a motion, it leads to a hearing.
Seth Nelson:
Correct.
Pete Wright:
Okay.
Seth Nelson:
Now the question is how do you get a hearing? Right?
Pete Wright:
Right.
Seth Nelson:
How do you get on the judge's calendar?
Pete Wright:
So every judge has Calendly.
Seth Nelson:
That's right.
Pete Wright:
You just find a time.
Seth Nelson:
Find a time, no problem. We'll just put it out there for everyone to see. They actually have their version where they'll have what's called the open docket, and you can go on and see some of their time and then you can't click it and save it. You got to request it, but-
Pete Wright:
Yeah, but at least you have a ballpark.
Seth Nelson:
Yeah. But what you do is you look at their preferences on how they like to schedule things. So go to their website, on the court judicial websites. But usually let's say you email their judicial assistant and you say, "We filed this motion. Here's a courtesy copy, and please give us one-hour hearing times or 30-minute hearing times, and we're requesting that you send us three." Any communication with the court, you have to put the other lawyer on it. There's no ex parte communication. And then the court responds back and says, "Here are the days." They do not want to hear from the lawyer, either one, to say, "These days don't work," whatever. The lawyers need to communicate and say none of those dates work. And then one of you emails back to the JA. The JA is not looking for you to say, "Date one and three don't work, but date two works for me." And then the other lawyer says, "No..." They don't care-
Pete Wright:
"Oh, that doesn't work for me. Can we move it a half hour?" Right?
Seth Nelson:
Right.
Pete Wright:
Right.
Seth Nelson:
No. They're overworked and underpaid. So what you need to do is work it out. If none of them work, then you immediately email the JA, "I'm sorry, opposing counsel has indicated that none of those dates work for him. Please provide three more dates." They provide three more dates. Opposing counsel says none of those dates work for him. There's Judge Tibbals who was on the Toaster a while back-
Pete Wright:
Sure.
Seth Nelson:
... I think his preferences say when send six days like that and they say no, you let the JA know that you've given six days and they've said no to all of them, and he will what he calls special set it. He picks a day on his calendar and everybody's showing up.
Pete Wright:
Wow.
Seth Nelson:
He's not playing. He's not-
Pete Wright:
He don't mess around.
Seth Nelson:
... playing the, "I'm unavailable," game.
Pete Wright:
Yeah. Okay.
Seth Nelson:
Okay?
Pete Wright:
That seems like a judicial power move to me.
Seth Nelson:
Yeah, it is, 'cause what happens is inevitably, somebody doesn't want the motion heard because if it's not heard, they're not going to lose.
Pete Wright:
Yeah. Right. So this is a stalling technique.
Seth Nelson:
Exactly.
Pete Wright:
Okay.
Seth Nelson:
And here's the other thing. You're allowed to respond within 24 hours. So I know there's lawyers out there, they get that email at 2:00 on Thursday and they look at their calendar and they're unavailable. They don't answer until 12:00 on Friday 'cause it burns a day. Right? So okay, you get the motion set for hearing. You would think you could just show up. Everybody knows we cleared it with the judicial assistant.
Pete Wright:
They have the motion. Isn't that enough?
Seth Nelson:
Right. No. The answer is no, Pete, it's not enough because the emails are not in the court file. Their communications with the judge, there's nowhere in that court file that the clerk has that says that motion has been set for hearing. So what you're required to do is do a notice of hearing because now everybody's on notice on when it is, what's being heard, what's the location, is it in person? If so, what address? What courthouse? What courtroom? What judge? How long, or is it by Zoom? What's the login? What's the password?
Pete Wright:
Okay.
Seth Nelson:
You have the right to notice and the opportunity to be heard. And under our local rules, did you order a court reporter? Is a court reporter like you see in the movies, taking it down? You got to put on your notice whether you ordered a court reporter or not, 'cause if not, the other side can order a court reporter. We put in on our notices the date that it was cleared with opposing counsel.
Pete Wright:
The date what was cleared?
Seth Nelson:
The setting of the motion.
Pete Wright:
The setting of the motion, okay,
Seth Nelson:
Cleared on this date via email. Cleared on this date in open court.
Pete Wright:
And then you take this final document and you go nail it to the courtroom door outside so everybody knows.
Seth Nelson:
That's exactly right.
Pete Wright:
It's a, "Hear ye, hear ye," kind of a scroll.
Seth Nelson:
It's like the funnest thing we do.
Pete Wright:
But all the stuff you're preparing is for the judicial file so the judge knows everything going into this hearing.
Seth Nelson:
The judge knows, and the judge actually doesn't get the notice of the hearing. The judge clears it with their JA, then you have to file the notice and we'll usually send a courtesy copy. But it is now in the court file, because under the United States Constitution and all the state constitutions, you have a right to notice of a judicial proceeding and the opportunity to be heard, and that's why you do a notice. So literally, the other day I filed a motion and the judge said that she would hear the motion the next day because we were already going to be in court.
Pete Wright:
Oh, okay.
Seth Nelson:
Okay? I put the other side on notice that I'd be filing this, and I just followed up with the judge like... Well, I actually filed it a few days before, but I filed up a couple of times like, "Hey, just checking, can we hear this?" And the judge wrote back, "Yes," and it was in the afternoon. And immediately my team was like, "We have to do a notice of hearing." So we quickly did a notice of hearing. Now the other side was on the email.
Pete Wright:
Right. It's not like they didn't know.
Seth Nelson:
We're still required to do your notice of hearing. So listen, when you the client file a motion, you need to check with your lawyer, "When is it going to be heard? Please send me the notice of hearing when it is set. Please clear the date with me," or just say, "I'm available any time. I will rearrange my schedule."
Pete Wright:
So you're implying that sometimes if the opposing counsel files a notice of hearing, you don't always get it?
Seth Nelson:
I get it, but does my client get it?
Pete Wright:
Okay.
Seth Nelson:
I've had clients say, "I didn't know about this hearing." I said-
Pete Wright:
Wow.
Seth Nelson:
... "Yes you did, 'cause we sent you this email and our deal is you check your email and it's in your portal. And by the way, you looked at it on this day." But you got to keep your client informed. If you're the client, you've got to say, "You filed the motion, please let me know every time you communicate with the court." And then you're going to tell your client, "Okay, my legal assistant, my scheduler is going to send an email, are you available in these days to the court?" Then they're going to immediately send that email and take it from their scent and send it to you. And they're going to say it's going to cost you more money. It's a fraction of the time. Stay informed.
Pete Wright:
All right. Talk to me about, so the hearing and then there will be some sort of a ruling. And then what happens?
Seth Nelson:
Okay, so this is not like what happens in the movies. I know, it's so sad. It's not-
Pete Wright:
Because it's better, right? You're going to tell me it's better?
Seth Nelson:
No. No, the book is always better, Pete. Everybody knows that. So what happens is you go to court and in the movies the judge makes their ruling and it's very dramatic. In court, the judge is going to do one of three things, or maybe four. He's going to make a ruling from the bench: granted, denied, granted in part, denied in part, and might give other things that then need to happen like motion for contempt and enforcement, granted. "Here's your sanctions. Here's your dates." They're going to fill out what happens next. Okay? The judge might say, "Hmm, this is a tough one. I'm going to take it under advisement," which means you're not getting a ruling that day.
Pete Wright:
But you will get a ruling at some point. I have always wondered this, take it under advisement, that indicates that a ruling is forthcoming, not just, "Yeah, I'll think about it," and then go play pool.
Seth Nelson:
Well, it's, "I'm going to think about it and when I'm done thinking about it, I'll let you know. And in the meantime I might go play pool. Okay?"
Pete Wright:
It's the, "I'll let you know," part that I'm most interested in. They have to tell you something at some point.
Seth Nelson:
At some point, and that gets to be a tricky, tricky thing when they haven't ruled because squeaky wheel gets the oil. But do you really want to be the one saying, "Judge, what's going on? You're not doing your job. I haven't heard from you." So what I do on that is I try to get the other lawyer to agree for me to send an email, and I say to the JA, "Dear Ms. or Mr. JA, Opposing counsel and I were trying to move the case forward and thinking about this, please give us the status on when the court may rule on this motion that was heard on this day. Docket number, this." You make it easy for them right? Okay. Opposing counsel's like, "You're not putting my name on that."
Pete Wright:
Because they know you don't want to be the squeaky wheel. Yeah.
Seth Nelson:
I'm like, "Okay, I'm going to wait a little more." Right? Right? So then sometimes, and I've done this, there was a motion to dismiss that I filed, this was years ago, I haven't thought about this in years, it was six months.
Pete Wright:
Before you got a response?
Seth Nelson:
I didn't get a response. I set a case management conference and I walk into court and the judge goes, "Well done, Mr. Nelson. I haven't ruled on that motion. That's what I would've done, too. Set a CMC. I'll have it to you by next week. And if not, set another CMC." And I had it in two days. The judge knew.
Pete Wright:
Okay.
Seth Nelson:
Right?
Pete Wright:
Yeah. Well, and I'm assuming by the time we're talking about the judges not getting you responses, it's just because their docket is so full.
Seth Nelson:
They're busy. Now listen, there's been judges that just get paralyzed. Maybe they don't know how to do it, or you always have those things that are gnawing at you like, "Oh, I should do it, I should do it." And you keep procrastinating and the worrying is worse than the doing. And then you do it and you get it done, and you're like, "Oh, that feels so good." Well, sometimes the hardest part of drafting an order is sitting down to start drafting the order.
Pete Wright:
And if we've learned anything from Judge Tibbals, our conversation with the judge is they're human.
Seth Nelson:
They're human, absolutely. Okay. But let's say you're fortunate enough the judge rules from the bench, and this is what you want to hear, before the judge rules or after their ruling when you already know the answer. But if you don't know their answer, if I'm sitting there, no matter which side of, if I'm asking for the grant or deny, what I'm hoping the judge says is, "Mr. Nelson, you'll draft the order," 'cause they usually make the winner draft the order.
Pete Wright:
Okay.
Seth Nelson:
Okay. You'll love that. And there's been once when the judge says, and I filed it and the judge said, "Mr. Nelson, you'll draft the order." You're feeling good, and then the judge started giving the order and I was losing, Pete. And at the end-
Pete Wright:
It almost feels punitive.
Seth Nelson:
At the end, I said, "Your Honor, they won. Why am I drafting the order?" They go, "It was your motion, Mr. Nelson." I'm like [inaudible 00:30:36]
Pete Wright:
This is the turnabout is fair play courtroom, Mr. Nelson.
Seth Nelson:
You're killing me.
Pete Wright:
Yeah.
Seth Nelson:
Just pour salt in that wound.
Pete Wright:
Yeah.
Seth Nelson:
Okay. So this isn't the movies. They give it to the lawyer to draft. Now, if we've learned anything on this podcast as horrible as people treat each other in the divorce process, you hope you have a good lawyer on the other side that you can work with. But now guess what you're going to do? I got to draft the order. I have to send it to my opposing counsel to see if they agree with the order. Now realizing usually you're drafting if you win, so they're already annoyed that they lost. And so now you're like, "Oh, here's the order where I won and you lost. Do you agree with what it says?" And I'm not saying do you agree substantively, do you agree with this is what the judge said?
Pete Wright:
Yeah. Hopefully by the time you're drafting that order, though, there is no question.
Seth Nelson:
Oh, there's questions. Maybe the judge didn't fill in all the blanks. Maybe you heard one thing, they heard another. Maybe there wasn't a court reporter. Maybe there was a court reporter. But now I know some lawyers that I'll go to send the order and I know they're going to object and then I'm going to rewrite it. We're going to fight about it. And then they'll be like, "Well, I'll just get the transcript from the court reporter." If I have one of those lawyers on the other side, I get the transcript right away, "Here's what they said." Sometimes you're just not going to agree, so now you have to submit to the judge competing orders.
Pete Wright:
Well, wait a minute, the judge says, "You write the order, Mr. Nelson."
Seth Nelson:
Yep.
Pete Wright:
The opposing counsel doesn't agree, so the opposing counsel is going to write their own order?
Seth Nelson:
So I write an order. Look at your local rules. I write an order, send it to them. They make some edits. Let's say I agree with some of them. What I really try to do on this, Pete, is if it's stylistic but not substantive, I try to accept it because-
Pete Wright:
Okay. Are we just tracking changes in Word? Is that what's going on right now?
Seth Nelson:
Yes. Well, if you're lucky, sometimes they send it to you in PDF and you're like, "Can you please send it to me in Word?" So it's just like, "Why are you making this so hard?"
Pete Wright:
Yeah. We should have learned this in the fifth grade on the playground while we're playing railroad tag. Be nice.
Seth Nelson:
Exactly. Exactly. So ultimately, what you do is I write a letter to the judge and I say, "Judge, here's our order. Counsel from the other side disagrees with paragraph five, paragraph seven," whatever the case may be. I lay it out in the letter and I attach my proposed order, and then ultimately what they might do is submit their own order. And that's called competing orders. And when you do a competing order, you send it in Word. And I back up everything I'm saying with the emails and stuff I got from opposing counsel saying they agree or don't agree, and you hope the judge will ultimately sign your order.
Pete Wright:
Okay.
Seth Nelson:
I will tell you, I do find that judges are very good at taking notes on the bench and then it gets entered. So here's one of the problems, and this is dealing with motion practice and why it's so important and what clients need to understand. When it says that you have to do something within 10 days, from when? Is it the date that the judge signed the order or is it from the hearing 20 days ago because you've been arguing about what the order's going to say. Right?
Pete Wright:
Oh, man. Okay. Okay. So I feel like we have a basis of understanding motions. Could you give us a teaser about what we're possibly going to be talking about in part two next week?
Seth Nelson:
Yeah. You ask good questions, Pete. You should be a podcaster.
Pete Wright:
Do you have good answers?
Seth Nelson:
That remains to be seen. What we're actually going to do is talk about different types of hearings because we've talked about how a motion gets filed. We've talked about how you have to sometimes mediate or there are emergencies or somewhere in between. There's a list of motions that I'm just going to mention what they are, and we're just going to tick them off just so you can refer back to this. Okay? But then we're going to talk about motions being heard on whether it's an evidentiary motion or a non-evidentiary motion. And that's going to be the podcast for motions part two.
Pete Wright:
Outstanding. Well, I'm already looking for it. I'm on Tinter hooks. Look, I'm just very excited.
Seth Nelson:
I'm just glad you're not frozen right now.
Pete Wright:
Thank you for this primer. I now understand pleadings and I understand motions. I'm excited to hear what comes next in our journey through your divorce case. As a reminder, head over to howtosplitatoaster.com and you can click the button that says submit a question. Ask your divorce question about any of the topics that we're talking about in Your Divorce Case series, and we will get those questions answered in an upcoming special bonus divorce Q&A episode. I'm very excited for that. These questions are stacking up. I cannot wait to start laying them down for you, Seth. This has been fantastic. Thank you all for your time and attention. On behalf of Seth Nelson, America's favorite divorce attorney, I'm Pete Wright, and we will see you right here next week on How to Split a Toaster: A Divorce Podcast About Saving Your Relationships.
Outro:
How to Split a Toaster is part of the TruStory FM Podcast Network, produced by Andy Nelson, music by T. Bless & the Professionals and DB Studios. Seth Nelson is an attorney with NLG Divorce & Family Law with offices in Tampa, Florida. While we may be discussing family law topics, How to Split a Toaster is not intended to, nor is it providing legal advice. Every situation is different. If you have specific questions regarding your situation, please seek your own legal counsel with an attorney licensed to practice law in your jurisdiction. Pete Wright is not an attorney or employee of NLG Divorce & Family Law. Seth Nelson is licensed to practice law in Florida.
