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Help with 2 documents received in mail

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tryingtomoveon

Guest
What is the name of your state? MT

I received two documents in the mail from X's lawyer and not sure what to do about them. One is a "Motion for Order to Show Cause and Motion for Attorney's Fees" and the other is an "Affidavit in Support of [Motions]". As far as I can tell these have not been filed in court. What am I supposed to do? I cannot afford a lawyer. I'm a full-time University student trying to keep a roof over me and my daughter's head. Is there some sort of legal aid I can get if I need to get a lawyer?
 


stephenk

Senior Member
Does your college have a student legal aid department? You can also go to a bookstore and purchase family law self-help books by Nolo Press.
 
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hmmbrdzz

Guest
You can call the court house, give the case number to the clerk of court, and ask her if these motions have been filed yet, if they've been decided upon yet, are these your copies, etc. These definitions of "Notice of Motion", and "Order to Show Cause" might help you some. Best thing to do -- call the courthouse.
Good luck. I doubt you'll qualify for legal aid in a divorce proceeding, but you can call an attorney's office, and they will give you a free consultation. When you call the court, you may find out that everything has been handled if one or the other party has not contested.

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FILE COPY:

Notice of Motion
Motions brought by notice of motion will generally consist of 3 sets of papers, the Notice of Motion, file by the moving party, the affirmation in opposition, field by the party opposing the motion, and the reply, filed by the moving party. Each of these are discussed below.

A motion made by notice of motion generally consists of:

(a) a notice of motion which contains the caption of the case, the court where the motion will be made, the date and time of the motion, and what the motion is seeking,

(b) the party's affidavit, which is a sworn statement which provides the factual reasons why the motion is required,

(c) the attorney's affirmation

(d) any exhibits in support of the motion.

At least 8 days notice is required, with an additional 5 days if the motion is served by mail.

The party opposing the motion prepares a set of papers called an affirmation in opposition, which consists of the party's sworn affidavit, and an attorney's affirmation, and any necessary exhibits.

The moving party then files a reply, which responds to the affirmation in opposition.



Order to Show Cause

An order to show cause is similar to a notice of motion, in that it can request the exact same relief as a notice of motion. It differs in that the party bringing the motion by order to show cause can submit the motion to the court before the motion is served on the other side. This is generally the only way one side can communicate with the court without the other side being present. In addition, an order to show cause can request that the court issue an temporary order before the other side responds. Order to show cause is often used when time is critical, such as when a child is in danger of being removed from the jurisdiction, or when a decision is needed faster than a notice of motion, such as temporary child support or temporary maintenance.

Motions brought by order to show cause will generally consist of two sets of papers, the order to show cause, filed by the moving party, and the affirmation in opposition, filed by the party opposing the motion. Each of these are discussed below.

A motion made by order to show cause generally consists of:

(a) the order to show cause. Unlike a notice of motion, the court will set the return date and manner of service.

(b) the party's affidavit, which is a sworn statement which provides the factual reasons why the motion is required,

(c) the attorney's affirmation in support of the motion,

(d) any exhibits in support of the motion.

The party opposing the motion will generally prepare a set of papers called an affirmation in opposition, which consists of the party's sworn affidavit, and an attorney's affirmation, and any necessary exhibits.

Deciding the Motion
Upon the submission of all papers, the court will make a decision, and issue an order in response to the motion. Some courts will require oral argument, but many courts will decide the motion based upon the papers alone. (This is called "on submission") The court can grant the motion in its entirety, deny it in its entirety, or grant some but not all of the relief requested.

Note: An affidavit locks that party into testimony, and any affidavits made for a motion are often used by opposing counsel during cross examination at trial. The decision what to include in a supporting affidavit, and what to leave out, is an art in itself, and should be made by the attorney representing the party.
 
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tryingtomoveon

Guest
thanks

thank you so much hmmbrdzz for all the info. The clerk left a message stating that the motions/affidavit has been filed but failed to give the date. I'll call and get more info this morning.

The motion is to find me "in contempt of Court for failing to pay monies owed to [x-hub] pursuant to the Separation Agreement...[and] to pay Attorney's Fees as" also provided in Sep. Agreement. I agreed to refinance or sell my home within 3 years of divorce and pay out said monies (it's been over 4 yrs) so I could retain the family home for the children. Is there any way the Judge would allow an extension on this agreement? I just want to get my BA degree and get daughter graduated from HS this Spring and then I will sell our home (son already in college). Do I have any negotiating power since I have shown to be steady and consistent in regards to my children and he most definitely has not. He's not followed through on any of his part of the agreement as a joint custody parent. Due to time, energy and resources I chose not to 'enforce' the agreement as long as he at least paid the agreed upon child support (which I had to go after him once--state of CA took care of that quite nicely). Does this put me at a disadvantage? Must we go to court? Because I commute daily 1 hour each way to school, the University is in a different county than where the divorce took place so they cannot represent me. Is there other legal aid I could receive?

Thanks again for the help. It is so appreciated. linda
 
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hmmbrdzz

Guest
Hi Linda: I truly don't know the best answers to give you on your questions. I'm not an attorney. However, since there has been a motion filed by his attorney to find you in contempt due to your failure to abide by the original agreement, I would strongly urge you -- if this hearing is coming up soon and you don't have time to find an attorney before the hearing -- to file a motion with the courts requesting continue the hearing until a further date and based on the grounds that you are not represented by counsel. You are entitled to representation in this matter. Call your state's "lawyer referral system". It's a toll free number (in my state, at least). Explain to them what is going on, that you can't afford an attorney but need one. I would definitely consult and secure an attorney or else you may lose everything. Your ex has an attorney, and you can just about trust that his attorney will prevail for him if you aren't represented.

Good luck. Keep us posted.


hmmbrdzz
 
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tryingtomoveon

Guest
court date set

I found out that the court date is set for 12/10.

I called the attorney that handled my case, but he was out for the day. I'll try him again on Monday to get his advise.

I'm going to take your suggestion and look further into filing an extension to at least give me some more time to check out my options and the best plan of attack. Otherwise, I will have to juggle court and finals. Yikes!

This is a GREAT service.....thanks again for all your input....L
 
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hmmbrdzz

Guest
You're welcome Linda. I wish you the best. Time is always on one's side!

hmmbrdzz
 
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gooberitiz

Guest
Dear Trying......

WHY are you going to college, since you cant read very well.

Contracts are made and YOU broke it, therefore they are going to sue you for the damages.

Just why on earth should anyone give you an extention? They have given you plenty of time but you are so LAZY in your priorities that you put this on the back burner, and now its about to catch fire...DUH!

I hope you really get aggrivated over this, becuse it will teach you that what is agreed to IN COURT must be followed NO EXCUSES!

Did you get that... NO EXCUSES!

Just dont be suprised if they treat you harhsly, becuase 3 years is 3 years not 4!
 

stephenk

Senior Member
just to point out, you are not entitled to attorney representation in a family law matter. you can hire an attorney or represent yourself, but the state does not have to provide you an attorney free of charge.

Regarding the motion, do you have anything from your ex regarding an extension of time to sell the house? The court will not look kindly on you agreeing to refinance the house and giving you 3 years to do it and now 4 years later you have not done anything. You may have to quit school, get a job and refinance the house. Your excuse that your ex hasnt complied with other parts of the agreement thereby excuses you will not fly with the court.
 

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