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If I have evidence for a motion to reconsider my divorce judgement that the judge gave me time to get.

Manteca, CA |

Do I file it with the court before the hearing or do I just wait and bring it to the hearing? A friend of mine said before so the judge has time to review it before the hearing. Is that correct?

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Attorney answers 2

Posted

A motion for reconsideration must be filed with the court and served on the adverse party at least 16 court days (not calendar days) prior to the hearing, and must be filed within 10 days after notice of the ruling (upon which you are seeking reconsideration) was served (i.e., mailed to you). Your Declaration in support of your motion for consideration should set forth the evidence that you want the court to consider, and should consist of new facts, laws or circumstances that have occurred since the court made its ruling.

Please note that this answer does not constitute legal advice, and should not be relied on, as each situation is fact specific, and it is not possible to evaluate a legal problem without a comprehensive consultation and review of all the facts and court pleadings filed in the case. This answer does not create an attorney-client relationship.

Posted

You must file a written motion for reconsideration with the court. You cannot just bring documentary evidence to you to the hearing.

A motion for reconsideration must be filed with the court and served on the adverse party at least 16 court days prior to the hearing, and must be filed within 10 days after notice of the ruling upon which you are seeking reconsideration was served. The requirements are set forth in California Code of Civil Procedure section 1008(a):

"When an application for an order has been made to a
judge, or to a court, and refused in whole or in part, or granted, or
granted conditionally, or on terms, any party affected by the order
may, within 10 days after service upon the party of written notice of
entry of the order and based upon new or different facts,
circumstances, or law, make application to the same judge or court
that made the order, to reconsider the matter and modify, amend, or
revoke the prior order. The party making the application shall state
by affidavit what application was made before, when and to what
judge, what order or decisions were made, and what new or different
facts, circumstances, or law are claimed to be shown."

In California, motions in the superior court generally must be served and filed at least 16 court days before hearing, with an additional 5 days’ notice given if served by mail within California, an additional 10 days’ notice if served outside of California, an additional 20 days’ notice if served outside the United States, or an additional 2 calendar days’ notice if served by facsimile or express mail. (Code of Civil Procedure, §1005(b).)

Oppositions (papers opposing a motion) are due 9 calendar days before the hearing. Replies (replying to an opposition) are due 5 calendar days prior to the hearing. Both Oppositions and Replies must be served so that delivery is ensured to be made to the other parties no later than the close of the next business day. (Code of Civil Procedure §1005(c).) Typically, this means by personal delivery, fax or overnight/express mail.

Proof of service of the moving papers must be filed no later than 5 court days before the hearing. (Cal. Rules of Court, Rule 3.1300(c).)

Frank W. Chen is licensed to practice law in the State of California. The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.

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