Divorce FAQ's
1. What court rule provides a litigant with the right to file a motion for reconsideration?
4:49-2. Motion to Alter or Amend a Judgment or Order
Except as otherwise provided by R. 1:13-1 (clerical errors) a motion for rehearing or reconsideration seeking to alter or amend a judgment or order shall be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it. The motion shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred.
The court is required to make a finding of facts or conclusion of laws under Rule 1:7-4. Therefore, it is always important to read the courts written decision or to listen to the courts decision if their findings were placed on the record.
It is important to note that a motion for a reconsideration is not an opportunity to try to re-argue the entire motion again. It simply allows for a correction to be made without the necessity of the aggrieved party filing a costly appeal.
A motion for a rehearing or reconsideration must be filed with 20 days after service of the order upon all parties. The time period runs from the date of service of the order rather than the date when the judge signed the order.
It must be emphasized that it is very difficult to prevail on a motion for reconsideration. Many judges simply view motions for reconsideration as an opportunity for an unhappy litigant to air their positions and re-litigate issues that have already been decided. Moreover, many courts believe that motions for reconsideration are an unnecessary duplication of the court time and counsel fees to the client. In light of this view, it is important for a motion for reconsideration to be prepared very carefully and thoroughly. The motion should specifically include the controlling cases or legal errors that counsel believes that the court has overlooked or erred.
Be forewarned, in many cases if you don’t prevail on a motion for reconsideration, then many judges will require you to pay your former spouse’s counsel fees. The legal fees to defend against a motion for reconsideration typically are between $1,500 and $2,500. Thus, the stakes in filing a motion for reconsideration are very high. In many cases if you lose, then you will have to pay your ex-spouse’s legal fees.
2. What are some typical cases wherein a motion for reconsideration would be granted?
a. The court has expressed its decision based upon clearly incorrect or an irrational basis. Some examples would be when the court used incorrect child support guideline sheets, the court uses the wrong numbers in the child support calculations, or the court incorrectly applied the law based upon the application case law or statute.
b. The court did not consider or it failed to note important evidence when it decided the motion.
c. The court’s decision was arbitrary, capricious or unreasonable.
3. I have just lost a very important motion in the family court. I would like to file a motion for reconsideration. However, sixty days have passed since the court entered its order. My lawyer has advised me that I am now out of time to file a motion for reconsideration. Is there any other type of legal relief that I can now pursue?
You can file an appeal. However, bear in mind that the costs to file an appeal are outrageous. The filing fees are very high. Moreover, you have to purchase the transcripts. Finally, appeals require lawyers to write detailed briefs. The legal fees to pursue an appeal in many cases are just not cost effective and practical.
Alternatively, if a person loses a motion, and if he is out of time to file a motion for reconsideration, then he can file another type of motion called a motion to vacate an order or judgment. This motion is filed pursuant to Rule 4:50-1. A party may seek relief from a court order upon filing a motion to vacate it. The movant must demonstrate one or more of the following reasons to vacate the order:
a. Mistake, inadvertence, surprise, or excusable neglect;
b. Newly discovered evidence which would probably alter the order, and which could not have been discovered in time.
c. Fraud;
d. The judgment or order is void;
e. The judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or
f. Any other reason justifying relief from the operation of the judgment or order.