As a local family law attorney, prospective divorce clients call me at all stages of the divorce or family law process. The most common types of calls I receive can probably be classified as follows:
-Prospective clients contemplating leaving their spouse;
-Prospective clients wishing to start the divorce process;
-Prospective clients who have been “Pro Se” for a period of time during the divorce process and now realize they are in over their head and need an attorney, they may be in default, facing a trial, or merely at the beginning stages of the divorce process.
-Clients who are already divorced and want to file a post-judgment action;
-Clients who filed a motion “Pro Se,” and were not happy with the result.
The clients who file a motion “Pro Se,” and are unhappy with the result often come to my office to talk about what they can do. They often express disappointment they didn’t hire an attorney. I tend to agree with them given that it’s harder to clean up a mess than to start off fresh. In addition, the standard of review is a higher burden to meet and there are tight time-frames.
What these individuals are often contemplating is filing a Motion for Reconsideration.
Motions for Reconsideration
In New Jersey, Motions for Reconsideration are addressed in Court Rule 4:49-2, (Motion to Alter or Amend a Judgment or Oder) which provides that:
“Except as otherwise provided by R. 1:13-1 (clerical errors) a motion for rehearing or reconsideration seeking to alter or amend a judgment or order shall be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it. The motion shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred, and shall have annexed thereto a copy of the judgment or order sought to be reconsidered and a copy of the court’s corresponding written opinion, if any.”
In non-legalese, the above court rules is essentially stating that a party can seek leave to the same court that rendered a decision to request that it be reconsidered provided it does so within twenty (20) days of being served with the Order. (an appeal to the appellate level is another consideration, but this article will only address Motions for Reconsideration).
As explained below, the standard of review for motions for reconsideration can be somewhat onerous. As the Motion should be directed to the same judge that rendered the initial Order, it can also be a difficult task to convince the judge that there could be an error in the Order. This can also be a delicate situation for an attorney. I remember when I clerked that I did not always appreciate motions for reconsideration—particularly ones that merely seemed to desire a second bite at the apple. As a practitioner, more often than not I avoid filing motions for reconsideration as they require the proper case where it is worth the additional time, money, and potential judicial ire to proceed.
The standard of review is as follows:
The party filing the Motion for Reconsideration has the burden to prove the court based its decision based upon a palpably incorrect or irrational basis, or has obviously disregarded or failed to appreciate the significance of probative, competent evidence. Such Motions are limited to clear error or matters the court overlooked on the original motion. Newly discovered evidence can also be used as a basis for reconsideration provided that such evidence wasn’t available at the time the original motion/action was filed.
Motions for Reconsideration can be a valuable tool because nobody is perfect and even our state’s esteemed judiciary can sometimes misapply fact to law. Because they can be costly and they are denied more often than not, each individual contemplating a Motion for Reconsideration should sit down with a New Jersey family law attorney to review the case and perform a fact-sensitive analysis about the appropriateness and cost-benefit analysis of filing such a motion.
Your New Jersey Divorce Lawyer:
If you’re considering a New Jersey divorce or Family Law action contact me to discuss your options. You can schedule an initial consultation by calling my office at 908-237-3096 or by scheduling your own divorce consultation online by clicking here.