Procedural vs. Substantive Motions in Family Law Cases

In a divorce or family law matter, various kinds of motions are usually filed as part of a case. Those who are going through a divorce are often confused about the nature of these motions. Confusion can also take place as to how these motions are heard and resolved.

Having an attorney with the resources and knowledge to give you the best representation is vital to your interest and the interest of your family.  You also want to make sure they will exhaust all avenues and be willing to research, pursue and implement strategies to provide the best possible outcome.

Most want to know how courts resolve these motions when individuals spend money on legal fees for filing motions. They also want to know whether a judge will require an evidentiary hearing.

Laws and procedural requirements vary by state. Different locales and judges can also handle procedural or substantive motions differently. But as a general rule, there are some common takeaways in terms of analyzing how procedural and substantive motions are heard and resolved. The examples below are how courts in Texas handle these types of motions in family law matters.

It is important to understand the difference between procedural and substantive motions. As a starting point, it is essential for individuals to differentiate between procedural and substantive motions. Procedural and substantive motions often go down two different paths regarding how they are heard and resolved.

First, procedural motions typically address legal matters before the court. Thus, these motions are much more about the legal process itself rather than substantive relief.  Secondly, substantive motions are when a party asks for the court to order something significant about the parties’ lives. For example, the motion could involve child custody, child support, property issues, or other substantive matters.

There are lots of procedural motions a lawyer can file in the family court. The possibilities are vast in number. To give a few examples of procedural motions, it could be that a lawyer files a motion to compel to order the other party to produce documents or discovery responses in court. Additionally, it could be a motion requesting a continuance of a trial date. It could be a motion requesting that specific evidence not be allowed at trial.

In terms of how these motions are heard, procedural motions normally do not require an evidentiary hearing. There are situations where that might not be true. But in most instances, the judge reads the motions. The lawyers then present oral argument to the court. The judge then makes the decisions without a hearing where parties testify. Often, it is not even necessary for the parties to attend the hearing.

On the other hand, substantive motions address the lives of the parties. It could be a motion for a temporary custody order during a divorce. It could be a motion for child support or spousal maintenance while the case is pending. It could involve a request for one party to be removed from the marital home.

In terms of how these motions are heard, judges do normally require an evidentiary hearing for these kinds of motions. As a result, these kinds of motions require a hearing. A judge cannot, in most cases, simply render a ruling without an opportunity for a hearing. This means that clients will be required to testify and present evidence in order for the judge to issue a ruling.

Rob McAngus, Partner with Verner Brumley Parker, P.C., is Board Certified in family Law and his practice is devoted primarily to family law, including high conflict divorce, custody cases, and complex property issues. In addition to being selected on the Board of Directors for the Family Law Section of the Dallas Bar Association; he values your priorities as a parent and works with you to achieve the goals that will help transition your family to a new normal.  As both an adopted child and a member of a blended family, Rob can provide a unique perspective in the practice of family law.

Rob has been recognized in Super Lawyers as a Rising Star in 2016 through 2021, and recently The National Advocates recognized Rob as one of the Top 40 Under 40.  He can be reached by calling 214.526.5234 or email at rmcangus@vernerbrumley.com.  Mr. McAngus received his bachelor’s degree cum laude and master’s degree from Baylor University and graduated cum laude from the Dedman School of Law at Southern Methodist University.