Emergent Orders to Show Cause
Divorce and family law cases often involve temporary motions and hearings. These temporary issues often arise after the initial filings but before the final trial. It allows the court to make decisions about how the parties will divide bills, how they will handle custody, or a variety of other possible issues on a temporary basis, i.e. until the final hearing can be held. In the vast majority of these cases, the attorney for one or both sides will simply file a motion asking the court to rule on these issues. In other circumstances, if the matter is considered to be “emergent” and, therefore, requiring immediate attention, the other attorney will receive notice of the hearing, sometimes will have an opportunity to present papers in advance, and the parties will proceed on an expedited basis. No decision will be made by a judge about any of the issues until the day the hearing is held. This emergent application is known in New Jersey as an Order to Show Cause.
An Order to Show Cause is used for temporary relief in a family law case, but is obtained very differently than an ordinary motion and has a very different procedure. An Order to Show Cause is one that is filed in order to obtain emergency relief. In the case of a show cause, an attorney will draft and file particular pleadings and a supporting letter brief with the court explaining why the situation is an emergency, and why it is not appropriate to wait for a typical hearing. The requirements for a show cause order were set out in Crowe v. DeGioia in 1982. These requirements are 1) the preliminary restraints are necessary to prevent irreparable harm; 2) the legal rights underlying the claims are settled; 3) the material facts are uncontroverted; and 4) the relative hardship to each party after granting or denying the request for relief favors granting the relief. In addition to these requirements, the relief requested must be imminent, and not speculative. Finally, if the harm anticipated would be adequately addressed by money damages, a show cause is not generally appropriate.
What this means is that a show cause is probably not appropriate where, for example, a spouse is requesting that joint custody be granted on a temporary basis. It may be appropriate, though, where one spouse is threatening to abscond with the children or is somehow harming them. Moreover, with respect to monetary issues, a temporary of a bank account would not be an emergency. Conversely, if a spouse is about to take all of the money and hide it in an off-shore bank account, that could be a reason for an Order to Show Cause.
After a show cause order is granted, the court will set a date to hear evidence about the issues. The court will then decide if the order should be permanent or temporary.
in helping our clients with emergency situations. Contact us today at (732) 529-6937 for an appointment to talk about your family law case and what we can do to help you.