The Value of a Narrative Response in Family Law Cases

Family law, which is a civil practice area, falls under the Civil Practice Act. See 750 ILCS 5/105(a) (“The provisions of the Civil Practice Law shall apply to all proceedings under this Act, except as otherwise provided by the Act”). Yet in domestic relations matters, many practitioners follow practice conventions that both (1) defy statutory rules governing pleading in civil matters; and (2) forgo the opportunity to educate the court by providing written argument and citation to case law in support of legal positions. This occurs most often in the context of responding to motions.

In most other areas of civil practice, (for example in cases before the Law Division, the Chancery Division, or in federal court), the respondent to a motion files what practitioners and judges commonly refer to as a “narrative response.” That means the respondent to a motion responds in complete sentences and paragraphs, reframing the issues the movant presents in a cogent and persuasive manner favorable to the respondent. By contrast, family law practitioners frequently respond to motions the way other civil practitioners file an answer to a complaint: by admitting or denying each paragraph, including in response to legal arguments as opposed to factual allegations. This practice is singularly unhelpful to the judge deciding the motion.

Moreover, it violates one of the cardinal rules of good advocacy: It defers to the movant’s organization of the motion, effectively letting the opponent write the response for them. This article hopes to explain some of the technical aspects of motion practice under relevant rules and case law. In addition, it seeks to drive home the importance of taking advantage of the opportunity to present arguments through a narrative response to motions.

Understanding the Difference Between Pleadings and Motions

It is important for all practitioners to understand the definitions of pleadings and motions in order to correctly prepare the appropriate responses. A pleading consists of a party's formal allegations of their claims or defenses. William J. Templeman Co. v. Liberty Mut. Ins. Co., 316 Ill. App. 3d 379, 388 (1st Dist. 2000). A pleading is a document that sets forth in paragraph-by-paragraph format the facts and arguments petitioners consider relevant to build the framework of their cause of action. See 735 ILCS 5/2-603.

In the family law context, the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”) expressly states that pleadings include “any petition or motion filed in the dissolution of marriage case which, if independently filed, would constitute a separate cause of action.” 750 ILCS 5/105(d). For answers to pleadings, admitting or denying the allegations in the pleading is an obligatory and logical response to narrow the issues for trial. According to the Illinois Code of Civil Procedure, “every answer and subsequent pleading shall contain an explicit admission or denial of each allegation of the pleading to which it relates.” 735 ILCS 5/2-610. Importantly, this only applies to pleadings; it does not apply to motions.

Courts have repeatedly addressed apparent confusion among family law practitioners as to the distinction between pleadings and motions. In In Re Wolff, the court distinguished between pleadings and motions in order to decide a motion to dismiss. 355 Ill. App. 3d 403 (2d Dist. 2005). Unlike a pleading (a party’s formal allegation of their claims or defenses), “a motion is an application to the court for a ruling or order in a pending case.” Id. at 407. In Wolff, the court denied the wife’s motion to dismiss the husband’s motion to reconsider. Id. The court based its denial on the fact that the wife’s petition was a Section 2-619 motion, which applies only to the dismissal of pleadings. Id. The husband had filed a Section 2-1203 motion to reconsider, which is obviously a motion. Therefore, the wife’s motion was a procedural nullity. Id. One cannot file a motion to dismiss a motion.

In cases governed by the IMDMA, a request for temporary or prejudgment relief in a pending case is a motion rather than a pleading. See In re Marriage of Engst, 2014 Ill. App. (4th) 121078. The IMDMA provides that either party may "move" for temporary maintenance or support, a temporary order of protection, preliminary injunction, or other temporary relief. 750 ILCS 5/501. Accordingly, such motions are applications to the court for a ruling or an order in a pending case. Templeman, 316 Ill. App. 3d at 388.

A recent unpublished Illinois case from the First District Appellate Court helps clarify the distinction between a pleading and motion. In re Marriage of Nguyen, 2023 Ill. App. (1st) 221045-U. Though no bright line test exists, there are clear, functional differences between pleadings and motions that carry implications in their separate roles. In Nguyen, the wife filed a motion to compel enforcement of her Marital Settlement Agreement (MSA). Id. ¶ 6. The husband filed a motion to dismiss the wife’s motion to compel. The husband also filed “affirmative defenses” to which the wife did not respond. The husband later argued those defenses were affirmed.

The Nguyen court rejected the idea that a motion to compel is a pleading. The court followed the logic that in dissolution actions, either to start or modify the dissolution, the petition is considered a pleading, because it starts the new suit. Id. ¶ 23. As the wife’s motion was simply to enforce a previously entered MSA, the court rejected the idea that a motion to compel enforcement is starting anything new. Rather, as it sought relief granted in a previously existing case, it was not a pleading and thus could not be subject to a motion to dismiss. Id. ¶ 22.

Additionally, the court rejected the argument that by not responding to his “affirmative defenses” the petitioner had affirmed his defenses. Rather, the court pointed out that in the context of a motion, failing to respond to the respondent’s defenses is not an automatic affirmation as it is in a pleading. Id. ¶ 23. “[T]he failure to file a written response to a motion within the time allowed therefor does not waive the right to contest the merits of the motion.” In re Marriage of Fahy, 208 Ill. App. 3d 677, 685 (1st Dist. 1991). In sum, pleadings and motions are statutorily different and need to be treated as such.

How Lawyers Should Respond to Motions

Motions require a narrative response. When a party files a motion with the court, the party is telling the court a story about a specific issue within the pleadings already filed. In the motion, attorneys are the narrators telling the court about a problem or conflict the client needs the court to address before the ultimate resolution of that pleading. In so doing, the attorneys have opportunity to cite to statutory and case authorities in support of their argument.

A response to a motion grants the responding party or attorney the opportunity to tell that party’s version of the narrative. It should ask for the responding party’s own kind of remedy: to deny the opponent’s motion. A response is supposed to make an argument for the respondent’s side of the issue, not simply admit or deny the individual paragraphs of the original motion. An admit/deny response to a motion tells the court virtually nothing about the respondent’s position regarding the facts or legal opinion of the original motion. In short, the admit/deny response lacks the care and advocacy that is required of a meaningful argument.

When an attorney prepares a response, it should tell the client’s side of the story. It should be persuasive, it should advocate competently for the client, and it should have its own point of view. Of critical importance, a judge who has read the response to a motion should understand the responsive/rebuttal argument. Based on strong support from cited legal authorities, the judge should also understand why the facts of the situation support the responding client’s position. By contrast, an admit/deny response lets the other party effectively write the response. Attorneys who do this are failing as an advocate. They are choosing to forgo their opportunity to tell their client’s story in a way that makes the judge feel they should win.

Conclusion

The failure of many family law practitioners to appreciate the distinction between pleadings and motions results in the common practice of using the “admit/deny” format in responding to motions. Hopefully, greater education as to the rules of civil procedure can reduce or even eliminate the practice.
But there are also very practical reasons to favor a narrative response. Unsupported denials and underdeveloped thoughts are generally unpersuasive. The legal argument of “I disagree” or “That is not true” is not as effective as actually setting forth your client’s narrative story and logical legal argument in support of the client’s position. Practitioners need to let the court know the client’s position, as well as the facts and legal authorities that support the client in a way that presents the client as the hero of their own story. Anything less than this is lazy and underperforming. Accordingly, family law practitioners should embrace the narrative response for the sake of their clients and themselves.

Special thanks to Judge Mitchell Benjamin Goldberg and Domestic Relations Division Attorney McKenna Deutsch for their editorial input for this article.