Procedural motions and motions on the merits in family court | Law firm Stange, PC


In a divorce or family law case, there are usually various types of petitions filed in the course of a case. Those who go through a divorce are often confused as to the nature of these motions. There can also be confusion as to how these motions are heard and resolved.

When individuals spend money on legal fees to file cases, most want to know how the courts resolve those cases. They also want to know if a judge will require a hearing of the evidence.

Laws and procedural requirements vary from state to state. Different locals and judges may also treat procedural or substantive motions differently. But as a general rule, there are some commonalities to remember in terms of the analysis of how procedural and substantive motions are heard and resolved.

Difference between procedural motions and substantive motions

As a starting point, it is essential that individuals distinguish between procedural motions and substantive motions. Procedural and substantive motions often follow two different paths in how they are heard and resolved.

Procedural motions usually deal with legal issues in court. Thus, these motions are much more about the legal process itself than about a substantive remedy.

Substantive motions are when a party asks the court to order something important concerning the lives of the parties. For example, the motion could relate to child custody, child support, property issues or other substantive issues.

Examples of procedural motions

There are many procedural motions that a lawyer can make in family court. The possibilities are vast in number. To give a few examples, it could be that a lawyer files a request for a contravention order the other party to produce documents or investigative responses to the court. In addition, it could be a motion asking for a postponement of a trial date. It could be a motion asking that specific evidence not be admitted at trial.

With respect to the way these motions are heard, procedural motions do not normally require the hearing of evidence. There are situations where this may not be true. But in most cases the judge reads the motions. The lawyers then present oral argument in court. The judge then makes the decisions without a hearing during which the parties testify.

Examples of substantive motions

On the other hand, substantive motions concern the life of the parties. It might be a petition for a temporary custody order in a divorce. It could be a petition for child support or spousal support while the case is pending. It could be a request for removal of part of the marital home.

In terms of how these motions are heard, judges normally require an evidentiary hearing for these kinds of motions. It may happen that a judge does not require it. In some cases, the parties might agree to submit it on the motions themselves or with affidavits. But generally speaking, these kinds of requests require a hearing. In most cases, a judge cannot simply render a decision without the possibility of a hearing.

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