Motion Mastery Part II: Navigating Hearings & Common Motions • Your Divorce Case
Effortlessly Navigate the Motions Maze in Your Divorce Case
In this sixth installment of our series, Your Divorce Case, Seth Nelson and Pete Wright dive deeper into the world of motions in divorce proceedings. Building upon the foundation laid in Motions Part I, we explore the differences between evidentiary and non-evidentiary hearings, discuss various types of motions you may encounter, and provide valuable insights to help you navigate this crucial aspect of your divorce case.
Seth and Pete break down the key distinctions between evidentiary and non-evidentiary hearings, highlighting the importance of understanding what to expect in each type of hearing. They also discuss common motions, such as temporary orders, restraining orders, and motions to compel, providing real-world examples and practical advice for listeners facing these challenges in their own divorce cases.
Questions we answer in this episode:
What's the difference between evidentiary and non-evidentiary hearings?
Do I need to testify at every hearing during my divorce?
What are some common motions filed in divorce cases?
Key Takeaways:
Always be prepared to answer questions in court, even if it's a non-evidentiary hearing.
Evidentiary hearings are like mini-trials, with witnesses, evidence, and cross-examination.
Familiarize yourself with the types of motions that may arise in your divorce case.
This episode is a must-listen for anyone navigating the complexities of divorce. Seth and Pete's insights and practical advice will help you understand the motions process, prepare for hearings, and make informed decisions throughout your case. Whether you're just starting your divorce journey or in the thick of it, this episode will provide the knowledge and confidence you need to move forward.
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, oh, a toaster in motion stays in motion. It's motions, part two.
Seth Nelson:
It's so bad. You wrote that yourself. Welcome to the show, everybody. I'm Seth Nelson. As always, I'm here with my good friend, Pete Wright. Today on the show, we're continuing our conversations about motions. As we learned last week, before we even get to trial, a whirlwind of motions from temporary orders to demands for financial information can have a big impact on the direction of your case. So this week, we're going to explore a few different things, Pete. Differences between evidentiary hearings and non-evidentiary hearings, because remember, motions will most likely lead to a hearing, so we need to know what we're doing, and we're going to talk through some different kinds of motions that you may or might not see in your divorce case.
Pete Wright:
Outstanding, Seth, last week on the show, I feel like this is our catch-up bit of our broadcast, of our drama broadcast. Last week, we explored motions. You introduced motions and what you might expect going through the divorce process. A motion is a formal request to the judge for specific orders, and Seth demonstrated by waving his hand in the air saying, "The motion is the judge is signing his name." And that has been so easy for me to remember. I feel like I've just graduated law school.
We covered various motions including those to compel the production of documents, enforce existing orders, request temporary support or custody arrangements, and address emergency situations. And we learned that filing a motion often involves coordinating with the court and opposing counsel to schedule a hearing, ultimately aiming to convince the judge to rule in your favor. And finally, we learned that calendaring with the court is a pain in the. That may be the second-biggest lesson that we got out of last week. It's hard.
Seth Nelson:
It is difficult, but it's not their fault. Let me be very clear on the top of the show. I mean, I have one judge that I was in front of last month, I think. Had over a thousand cases. Typically, in Hillsborough County where we do a lot of our practice, judges have 750 cases. So, there's a lot of work to be done with underfunded, understaffed. It's a big job.
Pete Wright:
So today, we're talking about, we're going to be talking about the evidentiary hearing versus the non-evidentiary hearing. But first, Seth, shall we commence the motions quiz?
Seth Nelson:
Oh, unannounced pop quiz. What are you doing there?
Pete Wright:
I'm very excited about this because I have a list. I have a list of kinds of motions, common motions filed during divorce proceedings. And it turns out, they're not just motion motions. They all have names.
Seth Nelson:
Okay. I don't know what you Googled to find this, but it's not on the NLG website.
Pete Wright:
Nope.
Seth Nelson:
Immediately I'm going to say, don't trust what you find on any website unless it's ours. So, Pete's answers might be wrong when he tells me that I got it wrong. So, fire away.
Pete Wright:
All right. Let's start with one of my favorite types of motions, the temporary orders motions. So, there are, as far as I gather, many different kinds of motions for temporary orders. Can you name five?
Seth Nelson:
This is like a fill in the blank? Wow. Motion for temporary relief.
Pete Wright:
Okay.
Seth Nelson:
Motion for temporary child support. One. You'll give me that one?
Pete Wright:
No, two. I'm giving you two.
Seth Nelson:
Okay.
Pete Wright:
No, you got two. You're two for two.
Seth Nelson:
Motion for temporary time-sharing or parent custody arrangement, depending on what they say in different states. Motion for temporary alimony. I need money to support myself during the pendency of the case. Four. My favorite motion I saved for last since you gave me five, a motion for attorney's fees and costs.
Pete Wright:
That one's not on my list, but I'm going to give it to you because that's fantastic. You've got to keep that one in your back pocket.
Seth Nelson:
Yep. And in fact, in Florida, it's called suit money and there's a lot of ways that you have to get there, but that is a motion that you can bring during the pendency of the case.
Pete Wright:
So, we've talked about those. The other two that I have on my list are, it doesn't have the word motion in it, but it is a restraining order. Is a restraining order technically a motion?
Seth Nelson:
That is a very good question. So, that's a check your local jurisdiction answer. So, in Florida, you would file technically what's called a petition for protection from domestic violence, because I'm keeping this in the family law kind of arena. Now, it expands out a little bit. When you're getting a divorce, you obviously have to be married. If it's a paternity case, you have a child together, which may not mean you're a boyfriend or girlfriend. It could have been a one night stand, right? But domestic violence can kind of expand the scope on what domestic means. Were you dating previously? Are you married? But it would be a petition for protection from domestic violence. The layman's term, the non-lawyer term would be restraining order, though that's technically not what it's called in court.
Pete Wright:
Okay. And how about a, this was the other temporary order that I found in my extensive research in the legal library, was the motion for exclusive possession of the home. Have you ever filed one of those?
Seth Nelson:
Exclusive? Yeah, it's a motion for exclusive use and possession of the marital home. So, that would usually fall under when you're looking for temporary alimony or support in basically saying, "Judge, during the pendency of this case, I want to stay in the marital home. My spouse has the funds from their income or non-marital assets to go get another place, and we need to work out how the bills get paid at the marital home." And usually, what happens in a lot of these temporary motions, the judge will, at the end, whatever they rule, they'll do a little comma and then write the words, "Without prejudice", which is really important because let's say you're given exclusive use of the marital home and your spouse that had to move out is going to pay $5,000 a month or $10,000 a month to handle all the expenses of that home without prejudice.
Which means, at the final hearing, at the trial, he gets to argue, "Judge, I've been paying $10,000 a month for this home for a year. That's $120,000. I should not have had to pay all that money. I want some of it back, or I want an offset on anything you're going to give my spouse at the final hearing." So, without prejudice, very important words. Means you can still argue about it later.
Pete Wright:
Okay. A bit of a speed round. I'm going to tell you what I think a motion is and you're going to tell me what it's called.
Seth Nelson:
Let's do it. This is great.
Pete Wright:
All right. A motion is filed if one party believes the other is not providing documents or information in a timely manner.
Seth Nelson:
Motion to compel.
Pete Wright:
Outstanding. Okay. Motion is used to request changes to existing orders.
Seth Nelson:
Motion to amend.
Pete Wright:
Outstanding. You should be an attorney.
Seth Nelson:
And not just play one on the podcast?
Pete Wright:
A motion is filed when one party violates a court order.
Seth Nelson:
Motion for contempt.
Pete Wright:
Okay. How about a motion is filed before trial to ask a judge to exclude evidence or testimony.
Seth Nelson:
Motion in limine.
Pete Wright:
I love that word so much, we're going to come back to that. And finally, a motion that argues there are no disputed facts in the case and the moving party is entitled to a judgment in their favor without going to trial.
Seth Nelson:
Motion for summary judgment.
Pete Wright:
As far as I know, those are the only five that you need to be a divorce attorney.
Seth Nelson:
That's it. Welcome.
Pete Wright:
How did we do? What did we miss?
Seth Nelson:
So, there are a lot of other motions that you can file.
Pete Wright:
Yeah.
Seth Nelson:
You've actually done a very good job on hitting the big ones.
Pete Wright:
Thank you.
Seth Nelson:
You've done some during the discovery phase, motions to compel, we need more financial information. Maybe there's some that you could have, if there's really troubling issues with a parent when it comes to how they parent or if there's mental illness, there could be a motion for psychological evaluation. Maybe you want to get a third party to help out. We've talked to a guardian ad litem them before, whose a neutral third party that can talk to the kids and talk to other collaterals like teachers and babysitters, like how do parents interact and what's going on? Motion to appoint guardian ad litem. There could be a motion for a social investigation, which is similar to a psych eval. Psych eval is really just what's going on in the mental state. The social investigation is kind of like a guardian ad litem, but more heavy because they usually have the credentials to do psych evals, so you can kind of lump them all into one. Motion to continue a trial.
Pete Wright:
Oh, I feel like I should have gotten that one.
Seth Nelson:
Well, no, it's out there. I mean, a motion to continue a hearing.
Pete Wright:
What does that mean, to continue in legal parlance?
Seth Nelson:
It means, judge, there is a procedural issue or that makes it improper to move forward with the hearing on this day, or in a date that's set in the future and we need more time to prepare. Maybe the other side hasn't produced what they're supposed to do. Maybe they're in violation of court order. So, I am prejudiced because I can't properly prepare because I need an extension of time or to change it. So, there's also a motion, frankly, for extension of time.
Pete Wright:
Those seems like the same things.
Seth Nelson:
It does, but one is a little different. So, one is when it's a motion to continue, there's a hearing set. You're trying to continue the hearing. A motion for extension of time is, you've served discovery and you say, "Please produce these documents within the 30 days." You can file a motion for extension of time that says, "Judge, I can't get all these documents done in the next 30 days. I need 60 days." Right? But I know what you're thinking, "Seth, you can't even get a hearing within 60 days." So, part of it is, yeah, you file your motion for extension of time. That actually doesn't toll the time. You're supposed to still produce, but judges typically don't pop you with it. But what we try to do is, even though we filed an extension, as we get the documents in, we're doing the notice of productions. Judge, we're supplementing what we're doing, right?
Pete Wright:
Yeah. We're doing the work, and you at least know that you're not just sitting back and stalling.
Seth Nelson:
Kicking the can down the road. Oh, another one just popped into my head and then it went out. Let me think. Oh, you do a objection. So, if someone asked you for documents, you object to them, the other side can set your objections for a motion, for a hearing. So, it's not technically a motion, but I file an objection because they ask for 20 years of bank statements. Objection. It's not relevant. They've only been married for five years, judge. Right? Then they can set my objection and see what the judge says about that.
Pete Wright:
Walk me through what that means, to set an objection.
Seth Nelson:
Set it for hearing.
Pete Wright:
Oh, okay. All right. Okay. Separate hearing?
Seth Nelson:
Yep.
Pete Wright:
Just on the objection.
Seth Nelson:
Just on the objections.
Pete Wright:
That's nice.
Seth Nelson:
Yep.
Pete Wright:
Okay. So, that is all short-
Seth Nelson:
Well, I got to tell you, I was a little nervous on the pop quiz.
Pete Wright:
... You got 102% out of the thing. I mean, I don't know why you're upset.
Seth Nelson:
Well, appreciate the bonus points.
Pete Wright:
Yeah, you did great. You really did great. But now, we need to transition to this whole evidentiary versus non-evidentiary hearings because that's a thing that you're going to hear in your divorce case, and we need to understand what it's all about.
Seth Nelson:
It's actually a thing that you might not hear, and that's why I'm mentioning in it now. Okay?
Pete Wright:
Okay.
Seth Nelson:
Because-
Pete Wright:
Ignore everything I just said.
Seth Nelson:
... No, no. It's really important. It's because clients will ask me, "Do I have to testify? Do I have to say anything in court?" And as lawyers, we get so used to being like, "Oh, it's a non-evidentiary hearing. Yeah, we got it. We're prepared. Boom, boom, boom." But the client doesn't know whether when you're going to court, whether they're going to have to say anything or not. So, the first rule is, when you're going to court, ask your lawyer, "Am I going to be expected to say anything? Am I going to be expected to answer any questions?" Because that's the only thing you do in court. You only answer questions. So, the first rule is, you should be prepared to always answer questions no matter what the hearing is.
Pete Wright:
Because the judge could ask you a question at any point.
Seth Nelson:
You got it.
Pete Wright:
Even if you're sitting in the audience or sitting behind your little table.
Seth Nelson:
Well, you'd be sitting at council table or on Zoom or what have you, right? And the question could be as simple as, "How are the kids doing?" Right? It could be as, "Well, what, if anything, are you doing to find employment, sir?" Right? Now, the judge controls the courtroom. So, you should be prepared to always answer questions, which means you need to follow these rules, listen to any question being asked of you, think about the question. If you understand it, answer it honestly in the least number of words as possible and stop talking. Okay? So, always have those rules ready to go. But bigger hearings or anything that where you are going to be called to testify is an evidentiary hearing as opposed to a non-evidentiary hearing. So, what's the difference?
Pete Wright:
Okay. Yeah, what is the purpose of each of those?
Seth Nelson:
Right. A non-evidentiary hearing is a hearing where the court is not going to take in any evidence. They're not going to swear in any witnesses. They are not going to take in any documents. They're just looking at the court file on what's been filed in the court, and they're hearing arguments from the lawyers. You might present a case, you might present legal memorandum of law explaining what the issues are, explaining what the rules are, what the law is in your opinion, and then what the undisputed facts are and what your analysis is, and therefore the court should rule in your favor.
So, a motion for extension of time might be, "Your Honor, they filed a motion, they filed a notice of production or request to produce documents within 30 days. Judge, I am on vacation for two weeks, going to a family trip to celebrate a wedding." Right? We're going to a wedding overseas. "I'm not going to get it done. That has nothing to do with my client. We're going to work on it while I'm gone. I am unavailable, judge. I'm out of the jurisdiction. I'm asking for an extension of time."
Pete Wright:
Non-evidentiary?
Seth Nelson:
Non-evidentiary, right?
Pete Wright:
Procedural. Okay.
Seth Nelson:
Motion for default, which means, we didn't talk about this, that's why I mentioned it.
Pete Wright:
No.
Seth Nelson:
You file a petition for divorce. You have them properly served, they have 20 days to answer. They write a sticky note and say, "I don't believe that this court has any power over me or my marriage," and they put it in the court file. Well, that's not a proper answer to a petition. And so, I would file a motion for default and say, "Judge, they didn't properly answer." You don't have to take any evidence because I'm going to ask the judge to take what's called... You're not going to call any witnesses. I'm going to ask the judge, take judicial notice, which technically is evidence, but take judicial notice of the court file. And then, the judge is going to look at it. We're not going to...
The guy's not going to say, "Well, I believe this, I believe that, and I've got three constitutional experts that I'm going to bring into court to tell the court why you don't have jurisdiction to over my marriage, and I don't believe this is..." None of that is happening. The judge is just going to look at the file and say, "You didn't properly answer, so you're in default." Motion to set aside a default. Pretty easy, right? So, that would be some examples of non-evidentiary hearings.
In Florida, you have mandatory disclosures. You have to do a notice of compliance of mandatory disclosures. I show up to court and I say, "Judge, I'm compelling mandatory disclosures." I'm not bringing on my client to say whether they've given the documents because the document's certificate are supposed to be filed in the court file, and then the actual documents come to your lawyer. So, I'm just going to say, "Judge, they never filed a certificate or here's what's missing. Look at their compliance. We've looked through their compliance." And the judge might ask me, "Well, Mr. Nelson, they said they produced all the bank statements." I said, "Judge, they did produce them all, but they've redacted information. and I can show you the information they've redacted." And the judge is going to kind of just take a quick look, right?
Pete Wright:
And this is still considered a non-evidentiary [inaudible 00:18:21]?
Seth Nelson:
Non-evidentiary.
Pete Wright:
Because it's not new.
Seth Nelson:
I'm not... Right. I'm not calling my client to get the document in, or, "Counsel, what do you say?" And you kind of work those out.
Pete Wright:
Okay. So, now, evidentiary hearings.
Seth Nelson:
Big ones. Okay? You need to think of every evidentiary hearing like a little trial. And if you think about it, a trial is the big evidentiary hearing at the end of the case, right? Or what you hope is the end. So, witnesses will be called to the stand. Experts might be called to the stand. There will be questioning by the lawyers. There will be a cross-examination by the other lawyer. The lawyer that did the first questions, then there's cross. So, it's direct cross, then there's redirect. Okay?
Pete Wright:
Okay. Can I interrupt you for a second, because you just changed my worldview a little bit. How many evidentiary hearings might one expect before the big evidentiary hearing at the end? How often are you going to trial, to these mini trials?
Seth Nelson:
Well.
Pete Wright:
I always thought there was just the one.
Seth Nelson:
No.
Pete Wright:
You do all your preparation and then you do the dance at the end.
Seth Nelson:
You do a motion for temporary relief, and in that motion for temporary relief, you ask for a temporary time-sharing schedule, you ask for exclusive use and possession in the marital home. You ask for child support, you ask for temporary alimony. That's a mini trial.
Pete Wright:
And it's all evidence.
Seth Nelson:
It's all based on the evidence.
Pete Wright:
That's fascinating. Okay. All right.
Seth Nelson:
And here's the thing to think about. When you're going into an evidentiary hearing, the judge only sees what happens in the courtroom and what's in evidence, right? So, I want you to think of a football game or a sporting event, right? The ESPN, when they're going to go through it and tell you what happened, they're not going to go through every single play. They're going to condense it to give you the main points, right? The big place.
That's what a trial is, because I might take a deposition of a witness for four hours and another deposition of a witness for two hours, and another witness, and I might have 10 witnesses that I take depositions on, and I might only have a two-day trial. I'm not getting all of that information into a trial. We don't have enough time, because when you're doing those depots, it's very broad. When you get to trial, you've got to condense it and make it persuasive and succinct. It's better to ask 10 pointed questions in trial than 100 questions, because at 100 questions, the judge might not know what your real point is.
Pete Wright:
When you do these depositions and then you go to your final trial, how much of, do the raw transcripts of your depositions get entered into evidence for the case, the trial?
Seth Nelson:
You can use a deposition of a party opponent for any reason. So, I always file them in court. You can also use them to impeach a witness. So, I take your deposition, Pete, and you say, "That light was red." Right? Then in court, I say to you, "Sir, what color was the light when the car went through?" And you say, "It was yellow."
Pete Wright:
Oh, you caught me.
Seth Nelson:
Okay? And then I say, "Sir, do you remember having your deposition taken on September 12th, 2024?" "Yes." "Do you remember that there was a court reporter there recording the transcript?" "Yes." "Do you remember being sworn in to tell the truth?" "Yes." "Did you tell the truth?" "Yes." Then you got to check your local jurisdiction on evidentiary rules. I say, and I just say it. I don't ask you any more questions. "Your Honor, page 37, line four. Question: Sir, what color was the light when the car passed into the intersection? Answer: Red." And then I go on to my next question and I've just impeached you, right?
Pete Wright:
Okay.
Seth Nelson:
So, that's one way depositions can get used. So, if your deposition has been taken in, and you're going to be a witness, even if you're, I mean, when you get called to the stand, you're a witness. It's your own case, but you're still considered a witness. You're on the witness list, right?
Pete Wright:
Yeah. You're still a witness.
Seth Nelson:
You better have read your deposition.
Pete Wright:
How often does that happen where somebody impeaches themselves because they just forgot what they said? How often do you get that?
Seth Nelson:
Every day. It happens all the time, right?
Pete Wright:
I believe it.
Seth Nelson:
But there's certain rules where you have to ask the exact same question. Okay?
Pete Wright:
Could I just get up and say, "Look, I know you're asking me about the light, but why don't you just see my deposition? I was sworn in. That's what I said. I stand by that."
Seth Nelson:
No.
Pete Wright:
Okay. All right.
Seth Nelson:
Because when you're on the, you're not asking questions, you're only answering them.
Pete Wright:
Yeah.
Seth Nelson:
Right? And this all goes to credibility.
Pete Wright:
Okay.
Seth Nelson:
So, very good question that you just asked.
Pete Wright:
Thank you so much.
Seth Nelson:
Well, I was going to say, but you're on the stand, so I kind of let it slide.
Pete Wright:
The light is still red.
Seth Nelson:
So, you see the difference between an evidentiary and non-evidentiary? Non-evidentiary, the lawyer's kind of doing all the work.
Pete Wright:
Yeah.
Seth Nelson:
But an evidentiary hearing, where you might be called as a witness, you've got to be ready to go.
Pete Wright:
Do I have to show up as, let's say I'm your client. Do I have to show up for all of the hearings, evidentiary or non-evidentiary alike?
Seth Nelson:
No.
Pete Wright:
Should I expect to spend that time in court?
Seth Nelson:
You should expect to, you don't have to. It depends on the hearing, and it depends on whether the court will excuse you or not.
Pete Wright:
If you, the attorney, are spending two weeks in the Maldives for a wedding and you are filing a motion to extend, I probably don't need to show up to that.
Seth Nelson:
Correct. Correct. Now, I have a rule with my clients. I want you at every single hearing. There's a couple reasons for that. One, you're not used to going into a courtroom. You may have never walked into a courtroom. It's a little different on Zoom, but I want you by me on Zoom, I want you focused. I want you to see the judge and how they respond, okay? It all just gives you some familiarity, which hopefully makes you more comfortable and at ease so you can be yourself in court. The second, I think it's important for a judge who's judging you to see you, right?
Pete Wright:
Again, goes to character. You're showing up, you're present, you're attentive.
Seth Nelson:
That's right.
Pete Wright:
No matter what.
Seth Nelson:
This is important to me.
Pete Wright:
Yeah.
Seth Nelson:
Right? Now we, look, "Judge, this is a motion to compel. My client is a teacher and it's the first day of school." You're not going to get a hard time. So, what other questions do you have about evidentiary hearings?
Pete Wright:
Now, because you have so dramatically changed my worldview and the fact that these are all mini trials, these hearings, I feel like I already have a better sense of what goes into the preparation of each of these. But from the perspective of a client, what is my, what should I expect to be asked by you in preparing for one of these evidentiary hearings?
Seth Nelson:
You should be asked by your lawyer or your legal team, legal assistants, schedulers, paralegals, when are you available to come in and prepare? And if you're not getting that on the calendar well in advance of that hearing, because you might need more than one prep, right, Is you should be reaching out, "Hey, we got a hearing coming up in December 12th. It is now September, beginning of September. When can I get on the calendar to prepare and what do I need to do to prepare for my meeting with you?"
Pete Wright:
Yeah, okay.
Seth Nelson:
To prepare.
Pete Wright:
Two different things, right?
Seth Nelson:
Right.
Pete Wright:
Yeah.
Seth Nelson:
And you should be asking those questions. I personally, if available for my clients, if they're available after hours on the weekends, on big hearings or big depositions, that's when I like to prepare them, because sometimes it takes a long time. It's something that I'm just willing to do. Not every lawyer is. I just find that it's better when you're here on the weekend and it's quiet and there's no interruptions, and you're not thinking about the cases or your email blowing up all the time or doing this or doing that. And it just kind of gives you some time to really go through things, especially if it's big, big hearings or big, big. And your deposition, definitely, you got to be prepared. Now, you asked what kind of questions. It will depend on the hearing.
Pete Wright:
Of course, on whatever you're trying to solve.
Seth Nelson:
If we're going to temporary parenting or you're preparing for a depo on your parenting, yeah, I'm going to go through the parenting factors, right? And I'm going to take you through my depo prep that we're going to do later in the season. We've done it in other shows, but we're really trying to focus people on the process here, and we'll go through that depo prep.
Pete Wright:
So, I mean, what are the other sort of red flags that I need to be on the lookout for? Because we haven't, and I'm saying this specifically in the context of motions filed against me. What is my perspective when motions come in asking things of me and my case that I'm not filing?
Seth Nelson:
Okay. Pete, you're crushing the questions today.
Pete Wright:
Well, thank you, Seth.
Seth Nelson:
I mean, I'm not surprised, but I'm still impressed. So...
Pete Wright:
I'll take it.
Seth Nelson:
First off, whenever you get a motion that's filed against you, breathe. Just because a lawyer wrote it in a motion and just because the other side signed it saying it's true, doesn't mean that it's true. Doesn't mean that even if it's true, they'll be able to prove it in court, and doesn't mean that the judge is going to believe that. So, read it once. Call your lawyer and say, "Is this something I should be worried about? On a scale of 1 to 10, how angry should I be?" Right?
Pete Wright:
Yeah.
Seth Nelson:
How long should I stay angry? Because you're going to want to respond emotionally to these items. And some of this stuff we look at as lawyers and we just laugh, like, "That's never happening." I'm like, "Really?" We walk down the hall, "You won't believe the motion this guy just filed." Right? And we're like, "Seriously?" Now, you never know what happens in court, judges mistakes. But that's the first thing. And I say, read it once and then we're going to go through it. I'm going to tell you, "Look, this is a serious motion. We got to really prepare." And what I do is I bring you in and on every line of their motion, their allegations, I want to know what's happening. Do you know what they're talking about? Do you think you know what they're talking about? What's the other side to this story? Right?
So, example. There is a temporary order in place where there is a specific time-sharing schedule, and you have a 16-year-old kid who is not going to mom's. Mom files against my client dad a motion for contempt and enforcement and says, "Dad is withholding the child. Dad's not letting the child come to my house. It's dad's fault, dad's fault, dad's fault." Right? I call my client in. I already know what he's going to say. "I have a 16-year-old kid who had an altercation with mom because mom did this, this or that." I think, because it's hard to get info out of a 16-year-old. But all I can tell you is, this kid is not going to moms. So then I say, "What, if any consequences have you given?" Because cell phones are a motivator, cars are motivators. Well, they used to be. Kids don't like to drive these days, right?
Pete Wright:
Yeah, they don't care anymore. It's weird.
Seth Nelson:
So, then we talk about that. "I've taken the door off of his bedroom. I've taken his cell phone away except when he's out because I want to be able to get a hold of him for safety purposes. He still has his car, but only to go to his sporting events and to come home. And I tried that for three weeks, judge, and the behavior didn't change. Yeah. I'm letting him go out with his friends again."
Pete Wright:
Yeah. This is where we are.
Seth Nelson:
Right. Which might lead me to file a motion for reunification, because I'm going to go to court and say, "Judge, mom's going to blame dad. All we're saying is, we don't know what the problem is, but there's a breakdown between the relationship with mom and child and we want a reunification therapist. Dad will go and require the kid to go, right, and see if we can get this back on the right track."
Pete Wright:
I just want to back up and shout out again, your guidance for what happens when you get a motion served against you, to stop and breathe, read it once and call your attorney. That's a perfect checklist. It makes me think of the Keegan-Michael Key acting as Obama's anger translator. You remember that bit?
Seth Nelson:
Yes. It was-
Pete Wright:
One of the funniest damn bits.
Seth Nelson:
... It was at the White House correspondence dinner.
Pete Wright:
At the Press Corps dinner. Yeah. It's just fantastic. And that's what I feel like you're setting up. I'm your attorney, I'm going to be your anger translator.
Seth Nelson:
That's right. And the other thing about that, lawyers only know what their clients tell them, what the other lawyer tells them, what they see in the text messages, what they see in the emails, what they see in the documents. But there's so many bad things my clients do that I don't hear about until I hear it from the other side. There's also a lot of really amazing things my clients do as parents that they don't really think about, that they're so busy trying to defend themselves or attack the other side.
And I just tell them, "You're a parent. Let's just talk about what you do for parenting, which has nothing to do with what the other parent is doing." Okay? So, when I go through these motions and I go line by line, and I love it when they're very specific because I don't know what they're talking about other than what they wrote. I wasn't there. So then I'll ask the client, "Do you know what they're talking about?" "Oh yeah, I know what they're talking about."
Pete Wright:
I imagine that illuminates so much. Those incoming motions can be like a litmus test for your client's personality and experience as a parent.
Seth Nelson:
Oh, yeah. No, very few clients, even though we will ask, and when we go through those 20 different factors and Florida family law as parenting, will tell us what they do bad, right? And so, we really push them on that. Now, this isn't just about parenting. These motions are all over, even if you don't have kids. And people that don't have kids, listen up. We don't know when you start hiding money. We don't know when you start having affairs or opening up other bank accounts or borrowing money from friends to support your gambling addiction, telling them you'll pay it back later. There's a lot of stuff that happens. So, you got to be honest with your lawyer.
Pete Wright:
I can't think of a better message than that to end it on.
Seth Nelson:
Well, I'm just glad there wasn't another pop quiz because I was only going downhill from there.
Pete Wright:
You did great, man. I'm now loving this quiz model. I think we can lean in on this for future episodes. Keep a running score. It's going to be great. Thank you Seth so much. This was great. Do you know what we're doing next week? I believe we're going to be digging into court personnel. Who are the people that you're going to be engaging with through the course of your divorce process?
Seth Nelson:
I'm looking forward to that, because you might not engage with all of them, but you need to know who these players are because your lawyers are going to be saying words to you like, "J.A." Right? Initials.
Pete Wright:
Yeah. I mean, I know what that is, but others, the [inaudible 00:35:23] don't.
Seth Nelson:
Yeah, exactly.
Pete Wright:
I of course already know.
Seth Nelson:
Right, right. So, yeah, it's going to be good.
Pete Wright:
Yeah. Looking forward to that. Don't forget, you can send in your questions at howtosplitatoaster.com. Click on Submit a Question and ask us, and we'll get it on the list for our bonus Q&A episodes. On behalf of Seth Nelson, America's favorite divorce attorney, I'm Pete Wright, clearly lawyer-in-training. I'm not a lawyer-in-training. And we'll see you next time right here 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.
