Pleadings Are Not Court Orders

Rick FairUncategorizedLeave a Comment

pleadings

For the uninitiated, legal action (be it a divorce of child custody matter, contract dispute, or even criminal charges) is a foreign endeavor. Except for those of us mad enough to enter the legal profession, most people will only be involved in our legal system a handful of times, at most, during their lifetime. Unfortunately, this means that most people either prosecuting or defending a lawsuit will often find the process confusing and overwhelming.

It also does not help that, as attorneys, we tend to take our knowledge for granted and forget that before law school, we did not know the elements required to prove negligence or the difference between personal and subject matter jurisdiction either.

Sadly, this means that attorneys can, and sometimes do, forget to explain to our clients the basics of how our legal system works. One particular misunderstanding I have seen, in both my own clients and opposing clients, is that pleadings (what your attorney files with the court on your behalf) are not the same as court orders.

Simply put, all pleadings filed with the court (usually called a “Petition,” “Motion,” or “Application” if you are prosecuting the case; and usually called an “Answer” or “Response” if you are defending the case) are the written form of what you are asking the court do to, and will typically contain your reasons why the court should grant your requests. Because pleadings are just that – requests – they cannot be enforced against either party, and are not guaranteed to be granted. For example, a Petition for Divorce that asks the court to order child custody split on a week on/week off schedule between the parents cannot be used to force the other parent to comply with that possession schedule. It is only what the Petitioner is asking the court to order, not necessarily what the court will ultimately order. I have had many clients worry that they will be responsible for the other party’s attorney fees because a request for attorney fees is included in that party’s pleadings. Again, just because a party asks the court to order the other party to pay his or her attorney’s fees does not automatically mean the court will do so.

Court orders, on the other hand, are the written form of what the judge commands the parties to do or not to do. Court orders are typically drafted by one of the attorneys involved in the case after the parties have either reached an agreement on how to resolve the case or after both sides parties have presented their case at a hearing, and the judge or a jury has made a ruling. Court orders can be enforced against the other party, and that party can even be held in contempt of court and jailed for noncompliance.

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