When is it Appropriate to File an Emergency Application, Also Called Order to Show Cause?
There are two types of temporary applications in family court: emergent and non-emergent.
A non-emergent motion is an application that can be made in Family Court in which the applicant requests specific relief from the Court. Pursuant to R. 5:5-4(c), Family Court motions are deemed to be twenty-four day motions, meaning that the application must be filed at least twenty-four days before the scheduled return date. That is the soonest the Court will make a ruling on your application, but the reality is that most rulings are not made until well after the twenty-four day period for a variety of reasons.
If the relief you are requesting is emergent and you cannot wait a minimum of twenty-four days before obtaining said relief, you must file an Order to Show Cause.
There are different types of Order to Show Causes that can be filed based on the specific type of relief you are requesting. In order to grant emergent relief, New Jersey law holds that the movant must demonstrate that:
(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 demonstrate a reasonable probability of ultimate success on the merits; and
(4) the relative hardship to the parties in granting or denying relief favors granting the relief. Crow v. DeGioia, 90 N.J. 126, 132-34 (1982). The irreparable harm must be imminent, concrete, non-speculative, and the harm must occur in the near, not distant future. Subcarrier Communications v. Day, 299 N.J.Super., 634, 639 (App. Div. 1997). “Harm is generally considered irreparable in equity if it cannot be redressed adequately by monetary damages.” Crowe, supra, 90 N.J. at 133-34.
It is important to note that the Court has deemed it improper to use an Order to Show Cause to modify support obligations. Wei v. Wei, 248 N.J.Super. 572 (App. Div. 1991)
In today’s society of instant gratification and perpetual impatience an Order to Show Cause could be seen as an attractive option regardless of circumstance, as it offers immediate relief. However, if your application fails to present objective evidence of immediate irreparable harm, it will be denied.
Contact the New Jersey Divorce Lawyers at Lyons & Associates, PC, Today
The important thing to realize is that there are different factors that can contribute to what type of application is appropriate to file. Please contact us online or call an experienced family law lawyer at Lyons & Associates today at 908-575-9777 to schedule an appointment to ensure that you proceed correctly.
Written By: William P. Lemega, Esq.