My ex filed a motion to modify child support claiming substaintial change of circumstances. The basis of the filing is false and it is easy to provide proof that it is untrue. My question is do I have to wait to for a court date, hire a lawyer, take time of for the appearence to present the evidence or is there some motion that can be filed now to have the motion to modify denied.
It sounds like you understand the mechanics of a motion to modify. In order for the court to revisit the child support calculations, one party has to overcome the burden of proving a substantial change in circumstances. I have also seen many motions where the stated substantial change is weak or nonexistent, and I have asked myself the same question. Do I proceed with preparing for the motion or calendar a motion to dismiss before the hearing on the modification?
I believe that it is possible to file a motion to dismiss or motion for judgment on the pleadings and be heard on it before the modification hearing, but so far, I haven’t encountered a situation where I believed this to be the best course of action. In these types of hearings, the judge will evaluate the arguments in the light most favorable to non-moving party and will likely decline your motion because the moving party hasn’t had the opportunity to present his or her evidence of the “substantial change” fully to the court. Now, the only thing you have done is given your opponent the opportunity to bolster his or her argument regarding a substantial change.
Whether you want to go forward with a motion before the hearing would be a strategic decision best decided after a detailed consultation where all the facts can be discussed, but to play it safe, I believe the best course of action is to move to dismiss at the close of his or her evidence, and renew that motion at the close of your evidence.