Why Are Some Cases Brought By Order To Show Cause

Once a divorce case has been or is being filed almost any type of judicial relief can be sought by Order To Show Cause (OSC), however sometimes the request must be done by Order To Show Cause and other times the request is made by Notice of Motion (Motion).  So what's the difference.  While a full day can be spent in law school trying to explain this to law students I will try and provide a brief limited explanation of the differences between the two.

There are some situations where only an OSC can be used.  If the statute requires an OSC it is usually because the Court has to direct the method of service on the other party.  So for example a Contempt application will always be started by OSC as the Court will direct personal service and set the time to respond to the OSC.  Another important reason for an OSC is that usually the case can be heard in the court faster than if a Motion is brought which generally provides a longer time period for the filing of a response.  A judge on an OSC can require a response within days rather then weeks, if urgency is a factor.  Another example is if the parties are already divorced and there is a need for a post-judgment application to the court, then the method of service must be directed by the court.

Another major reason for an OSC is that the party filing can ask the court to grant an immediate order so for example in a contested divorce case it could be an order directing the other person to pay child support, spousal support, pay the carrying charges on the residence, establish a parenting schedule, require therapeutic visitation, prevent a parent from relocating the child  or abstain from alcohol or drug use when with the child.  The court will require notice to the other person prior to the appearance for temporary immediate relief.  The court will then review the OSC and if the parties or their counsel are present listen to both sides and then decide what, if any orders to issue and when responding papers are due.

When a Motion is used generally there is less urgency of time, the case is already in progress and no immediate orders are being requested prior to the decision of the Motion after both sides have responded in writing.  So for example if one side is not producing documents, or fails to attend a deposition, or refuses to participate in an appraisal of a marital asset a Motion might be utilized.  Motion practice can be as extensive as an OSC however it may be somewhat less expensive because that first step of having an immediate court conference on an emergency basis is not needed.  

As with most matters involving  a divorce, having an experienced matrimonial attorney at your side is vitally important.