Motions in Utah Divorce and Family Law Cases - Melvin
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Motions in Utah Divorce and Family Law Cases

by Melvin Cook

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In my prior two posts, I have discussed the difference between Judges and Domestic Relations Commissioners, both of which are assigned to every divorce case in most district court cases.

Only judges have “ultimate judicial authority” and can exercise “core judicial functions”, such as hearing trials and making final adjudications. Commissioners perform a very wide variety of tasks in administering justice and assisting the judges in performing their functions.

In districts 1, 2, 3, and 4 (encompassing Box Elder, Cache, Rich, Davis, Morgan, Weber, Salt Lake, Summit, Tooele, Juab, Millard, Utah and Wasatch Counties) most motions go in front of the commissioners.

The procedures for motions heard by a judge are set forth in Rule 7 of the Utah Rules of Civil Procedure.
The procedures for motions heard by a commissioner are set forth in Rule 101 of the Utah Rules of Civil Procedure.

There are some motions that only a judge can here. These are set forth in URCP Rule 101 (j) as follows:

(j) Motions to judge. The following motions shall be to the judge to whom the case is assigned: motion for    alternative service; motion to waive 90-day waiting period; motion to waive divorce education class; motion for leave to withdraw after a case has been certified as ready for trial; and motions in limine. A court may provide that other motions be to the judge.

Motions for alternative service are usually made when the opposing party cannot be relocated after reasonable diligence and/or is intentionally avoiding service of process.

Motions to waive the 90 day waiting period for divorce can be made in extraordinary circumstances. It makes sense for the judges to rule on these motions because they will be entering the final divorce decree either before or after the 90 day waiting period based on whether or not the motion is granted. I have posted on the 90 day waiting period on March 4th, 2014, my first ever post on this website. Ahhh, nostalgia.

Attorneys cannot automatically withdraw from a case that has been certified for trial. They must make a motion to the judge in order to be allowed to withdraw from the case. This rule protects parties from being prejudiced by a late withdrawal by an attorney. It makes sense for the judge to rule on these motions because he or she must govern the way the trial is conducted.

Motions in limine are motions regarding the admissibility of evidence in advance of trial. It stands to reason that these motions can only be heard by the judge because the judge has the ultimate authority to hear the trial and make rulings on objections at trial.

Of course, judges may rule on any other motion. But as a practical matter, in the districts mentioned above, commissioners will typically hear and make recommendations on most other motions in divorce and family law matters.

In making a motion to be heard by a commissioner, a party must file the motion, a statement of facts supporting the motion, and a memorandum of law in support of the motion.

The motion should describe clearly and succinctly the relief the person is requesting.

The statement of facts is a party’s or other witness’s written testimony regarding the facts of which they have personal knowledge and which may assist the commissioner and judge in making a decision on the motion. While these statements of facts used to be in the form of affidavits sworn to and signed before a notary, with the prevalence of electronic filing they are now typically written statements that are signed by the witness and made under penalty of perjury.

The memorandum of law helps the judge and commissioner reference the relevant case or statutory law that governs the motion.

For motions that go to the commissioner, a hearing is scheduled and notice is provided to the other party.

It is helpful to contact an experienced family law attorney Melvin A. Cook in order to navigate the sometimes confusing procedures that apply in Utah divorce and family law cases.

This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.

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When it comes the family law and social security disability, each client and case is different. It is also important to select an attorney with the experience, skills and professionalism required to address your legal issues. To learn more, contact the Salt Lake City law offices of Melvin A. Cook and schedule an initial consultation to discuss your case.

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