by Samuel K. Darling, Bellevue Family Law Attorney
This article explains how to respond to a motion in a Washington State divorce or family law case. It also explains how to respond to a “show cause order”, sometimes called an “order to go to court” or “immediate restraining order“. The process for responding is the same in both situations.
Table of Contents
1) Overview of the Process
2) The Documents You’ll Need
3) Where & How to Send Your Documents
4) If You Need More Time
5) Objecting to the Reply
6) Arguing the Hearing
7) Presenting Orders
I. Overview of the Process.
1. The Other Side’s Motion. The process begins with the other side serving you with a document called a motion. A motion is a request for the court to do something. The most common motions are for temporary orders, such as a temporary parenting plan or temporary child support order. You should also receive various supporting documents, one of which is called a calendar note, notice of hearing date, order to go to court, or show cause order. This document tells you when and where the hearing on the motion will take place. At the hearing a judge or commissioner decides whether to grant the requested relief.
2. Your Written Response. You typically need to respond in writing a week before the hearing. The exact timeframe varies depending the kind of motion and the county’s local rules. Thankfully the calendar note served with the motion usually warns you of the response deadline. If you don’t know the responsive deadline, you should at least briefly consult with someone who understands the local rules for the county, such as a local attorney, LLLT (the equivalent to a nurse practitioner), or family law facilitator. Family law facilitators are the least expensive option at $10 per session.
3. If You Don’t Have Time to Respond. If you don’t have time to respond or need extra time to hire an attorney, you can request a continuance. A continuance pushes the hearing to a later date.
4. The Other Party’s Reply. The moving party is allowed to rebut your response with a written document called a reply. It’s typically the last word either party is allowed prior to the hearing. The exception is if the other opposing party’s reply breaks one or more rules.
5. Objecting to the Reply. If the other side’s reply breaks rules, you can submit a written objection.
6. The Hearing. Usually the parties and their attorneys, if any, appear in court for the hearing and are permitted to present oral argument. Then the judge renders an oral decision.
7. Orders. The last step in the process is when the parties draft written orders and the commissioner or judge signs them into effect.
II. The Documents You’ll Need.
Now that you have an idea of how to the process works, let’s get into specifics.
Typically your written response to a motion is the core of your defense, and the core of your written response is your declaration. But not always, and sometimes you need many more documents, such as a proposed parenting plan, proposed child support worksheets, a financial declaration, and financial source documents (what a long list!).
Here’s how you know which documents you’ll need and how to prepare them:
1. Mirror-Image Rule of Thumb. The rules dictating which documents you should submit can be hard to find, since it depends on which county you’re in and the type of motion. The easiest way for a layperson to figure out which documents to use in a response? Use the same documents the moving party did. You can exclude the motion and calendar note (or show cause order, sometimes called an order to go to court). You’ll need the other types of documents the moving party submitted.
If the moving party submitted one or more declarations, you should too. If the other side submitted a proposed parenting plan and child support worksheets, you’ll want to as well, and so on. Click here for articles on parenting plans and child support calculations. You’ll probably find templates for all the documents you’ll need at the Washington Court Forms Website > Family Law.
Sometimes it’s hard to identify whether the other side submitted a declaration, because it’s “subjoined” to the motion. This means the declaration’s added to the document called a motion, often at the end. If the motion or part of the motion is signed “under penalty of perjury”, that’s a subjoined declaration. You’ll want to submit your own declaration(s) in response.
If you need to provide the court with briefing on the law, consider submitting a separate legal memorandum. Click the link in the preceding sentence for an editable example in Word.
2. Declaration(s). As mentioned above, the declaration(s) you submit in response are usually the core of your defense. Here’s a link to an article on drafting declarations in support of a motion. Drafting one or more declarations in response to a motion is the same process, but with a single difference. You’ll want to add an extra section to your own declaration (the party declaration) titled something like “Unfair Accusations”. That extra section is where you rebut any of false or misleading statements that warrant additional attention.
Here’re examples of various responsive party declarations:
- Declaration in Response to a Motion for Temporary Orders in a Divorce
- Declaration in Response to a Motion for Adequate Cause and Temporary Orders in a Parenting Plan Modification
- Declaration in Response to a Motion to Modify Temporary Orders
3. Supporting Documents. Just as explained in the article on drafting declarations in support of a motion, you’ll want to gather documents in defense of your position. The process is the same in both scenarios, so please refer to the other article.
4. Response to Revision. There’s one common but very different scenario you should be aware of. That’s when the other side submits a motion for revision, which is a motion for a judge to take a second look at a commissioner’s decision. In that situation you can’t submit any declarations or supporting documents in response. You can only submit a responsive brief arguing the facts and law that were before the commissioner. No new factual statements or proof allowed.
The exact contents of responses to motions for revision can vary a little from county to county, but they tend to be quite similar. 1) State your requested relief; 2) state the facts before the court (refer to the declarations before the commissioner); 3) state the issues the judge is being asked to decide, what you believe the appropriate decision is, and why; 4) state the evidence you’re relying upon (the documents that had been submitted to the commissioner); 5) provide any legal authority and legal argument you believe is relevant; and 6) provide a brief conclusion (optional). Here’s an example of a response to a revision motion.
Often parties submit no written response to a motion for revision, because they think their original submissions (the ones prepared for the commissioner’s hearing) are sufficient.
III. Where & How to Send Your Documents.
You should make several sets of copies of all the documents you’re submitting in response to the motion. Have them sent to the following destinations:
1. File the Originals. File the original set with the clerk’s office for the county superior court. Usually this is done in person, but some counties, such as King County, offer electronic filing through a web portal. Electronic filing is almost always optional for unrepresented parties (parties without attorneys) – you can almost certainly file physical copies the old-fashioned way if you’re representing yourself.
2. Working Copies to the Jurist. Deliver a set of working copies for the judge or commissioner hearing the case. Ask around at the courthouse to find out where working copies go. There’s probably a drop box someplace. Often you’ll need to stamp the upper right corner of the first page and fill in the stamp’s blanks with routing information. You’ll know, because there’ll be a stamp of this sort sitting next to the working copy drop box. Routing information means the date and time of the upcoming hearing and where the working copies should go. You can find out where the document are supposed to go by looking at the moving party’s calendar note (or show cause order, sometimes called an order to go to court). The documents go to the judge, commissioner, or hearing calendar named there.
When delivering working copies, you might also need to insert the top document into a machine that marks the time and date you dropped off your materials. If so, there’ll be a machine sitting next to the working copy drop box.
As with filing documents, some counties have electronic systems for submitting and routing working copies. Rest assured, you probably don’t have to use the electronic system if you’re a layperson representing yourself.
3. Serve a Set on Each Party. Serve a set on every party to the case. Often there’s only one other party – the party who filed the motion. But sometimes there are more, such as a Guardian ad Litem and/or county prosecutor.
You can find the allowed methods of serving documents in How to Serve Papers in a Washington State Divorce. It applies to you even if you’re not involved in a divorce. Skip to that articles third section, captioned “How Do I Send Documents that Don’t Need to Be Personally Served”.
4. Save a Set. Save a set of your responsive documents for your own records.
IV. If You Need More Time.
If you need more time to respond or to hire an attorney, you should request a continuance. As stated above, a continuance pushes out the hearing date. Usually you can get a continuance by simply reaching out to the moving party or his or her attorney, if any. Granting a continuance of a week or two is an expected professional courtesy. For more on that, see the first section of the article Advice for New Family Law Attorneys.
If the moving party won’t grant the continuance, doesn’t know how to do it, or doesn’t provide you with proof of the continuance, you’ll want to show up for the hearing date. You can orally request the continuance from the judge or commissioner, and he or she will usually grant it.
V. Objecting to the Reply.
A reply is supposed to be a rebuttal and no more. It’s NOT an opportunity to bring up new allegations. Similarly, it needs to conform to the rules of evidence, the most notable of which is hearsay. You’ve probably already read about hearsay in the article on drafting declarations, mentioned above.
If the other side violates these rules, you can submit a written objection.
The objection should be filed and served in the same way as your responsive materials. There isn’t a clear deadline for the submission. Just get it to the court and other parties quickly as you’re able.
VI. Arguing the Hearing.
Generally you must show up at the time and place listed in the calendar note (or show cause order, sometimes called an order to go to court). If you don’t, the court almost always enters the moving party’s requested relief by default. You NEED to show up.
Sometimes you can appear telephonically or by streaming video, such as during the pandemic. But you need to appear live in at least some capacity if there’s oral argument scheduled. Almost all motions are with oral argument unless you’re informed otherwise.
At oral argument, no party is allowed to introduce new facts or evidence. Oral argument is based purely upon the facts submitted prior to the hearing and the law. The court will expect the moving party to orally argue first, usually for no longer than five minutes. Then you will be allowed to respond orally, also usually for no more than five minutes. Often the court grants the moving party a brief oral reply. Finally the court renders its oral decision. The parties take notes of what the jurist says, because parties usually draft the orders.
VII. Presenting Orders for the Court to Sign.
It’s a good idea to bring draft orders with you to the hearing. Typically the jurists asks the substantially prevailing party (or his or her attorney) to draft orders that reflect the court’s oral ruling. Assuming you’re in the courthouse in person, the parties then go into the hallway. The substantially prevailing party prepares draft orders for the opposing party’s review. Assuming both parties are in agreement on the language, they sign the orders at the bottom and return to the hearing room (courtroom) for the jurist’s signature(s). If the parties can’t agree on the language, they ask the jurist to decide the drafting dispute.
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