NJSBA Family Law Section

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  • 1.  Motion to Vacate Default/Affirmative Relief

    Posted 07-29-2015 03:23 PM

    Does anyone know if you can file a motion for default and simultaneously include affirmative prayers for relief on PL issues?  The reason I ask is because it seems somewhat inappropriate to file for affirmative relief when you have not yet even filed an Answer (hence the motion to vacate default).

    Any thoughts?  Replies on or off list are appreciated.


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    Rachel Cotrino Esq.
    Jackson NJ
    (732)987-9966
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  • 2.  RE: Motion to Vacate Default/Affirmative Relief

    Posted 07-29-2015 03:54 PM
    I suppose you could plead as a contingent prayer for relief (if default is
    vacated, then I request A, B, C). I agree that it's inappropriate to
    request affirmative prayers for relief in a motion to vacate (even if it's
    a cross motion), but in my experience, courts will vacate the default and
    also address the other requested relief from the defaulted party.


    Gregory Thomlison, Esq.
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    On Wed, Jul 29, 2015 at 3:23 PM, Rachel Cotrino via New Jersey State Bar


    Original Message


  • 3.  RE: Motion to Vacate Default/Affirmative Relief

    Posted 07-29-2015 09:10 PM


    The below worked recently, so... yes, I see no reason why you couldn't. Court obviously has to address A. first..

             A.     Vacating default and accepting defendant's answer and counterclaim for filing;

             B.     Maintaining the financial status quo pending defendant's relocation from the former marital residence, and determining plaintiff's pendente lite support obligations following her relocating;

             C.     Requiring plaintiff to continue contributing toward the children's tuition and related school costs, including by requiring joint filing of taxes and applying any refunds to these expenses;

             D.     Maintaining the status quo and awarding defendant primary residential custody, with the parties sharing joint legal custody, and referring the parties to mediation to address parenting time issues, if required;

             E.     In the event this application is opposed, for counsel fees and costs;

             F.     For such further relief as the Court may deem equitable and just.


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    David Perry Davis, Esq.
    112 West Franklin Avenue
    Pennington, NJ 08534
    www.FamilyLawNJ.pro
    Voice: 609-737-2222
    Fax: 609-737-3222
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