What is an Order to Show Cause?

Chicago Cubs fans around the world rejoiced this month when the team took their first World Series Championship in 108 years.  Thanks to the decision of an Illinois family court last month, however, there may be one disgruntled Chicago Cubs fan this year – a husband who was forced to provide his soon-to-be-ex-wife with a ticket to Game Four of last month’s World Series game between the Chicago Cubs and the Cleveland Indians.  The husband purchased Cubs season tickets with friends prior to when the divorce proceedings began this April and obtained tickets to Game Four of the World Series.  His wife filed an “Emergency Petition for World Series Tickets” with the court presiding over their divorce, claiming that because the Cubs had not made it to the World Series in 71 years, they might not make it to the World Series again in her lifetime, thus creating an emergency issue within the divorce.  Presumably, the wife argued that the tickets were marital property because the season ticket package was purchased prior to the commencement of divorce proceedings and that she had an equitable interest in the tickets.

The judge ordered that the husband could keep the tickets and take the parties’ twelve-year-old son to the game, but ordered that the husband purchase a “comparable” ticket for his wife.  At the time, the cheapest available tickets were being sold for approximately $3,000.  By entertaining the petition within a week’s time, the family court heard the petition on an emergent basis.  In New Jersey, emergent applications, if granted, are heard in a similarly expedited fashion.

The emergent application in New Jersey courts is called an Order to Show Cause.  Taking a literal reading of its name, it requires the other party to “show cause” why an order should not be entered granting the relief requested by the applicant.  Instead of being heard on a regular motion schedule, through which it can take several weeks to be decided by a court, an Order to Show Cause is heard on an expedited basis – as quickly as possible and often the same day if not within a few days.  The Order to Show Cause proceedings move so quickly because it is intended for use in only true emergencies.

An Order to Show Cause often seeks a preliminary injunction, prohibiting the other party from taking some action which, if performed, would result in irreparable harm to the applicant.  For example, if a similar scenario as the Cubs World Series tickets dispute would arise in New Jersey, an arguable basis for an Order to Show Cause would be that if the husband were not ordered to give his wife a ticket to the baseball game scheduled for that week, she would be irreparably harmed because she could not have an adequate remedy once the game takes place.  If she did not attend the game, she could never get that once-in-a-lifetime experience back. Because the harm to the wife would be immediate and irreversible, a court might consider an emergent adjudication to be appropriate in such a scenario.

The standard of  irreparable harm is necessary to avoid frivolous Orders to Show Cause from being filed in court with regularity.  The Order to Show Cause is an attractive option for many litigants eager to have their issues resolved by the court.  However, the Order to Show Cause is intended to be an extraordinary remedy, warranted in very limited circumstances.  Litigants should be careful to avoid abusing the Order to Show Cause process, especially if the same judge is presiding throughout the duration of your divorce proceedings.  A misuse of the Order to Show Cause procedure may result in disfavor or a decrease in credibility before a court.  Judges have many cases on their docket and a motion calendar with set deadlines keeps them organized and on schedule.  The Order to Show Cause is a deviation from that schedule, disrupts the judge’s calendar and requires the judge to drop everything and resolve a dispute.  For that reason, litigants are wise to exercise their option to file an Order to Show Cause only in true emergencies.

So what counts as a true emergency justifying an Order to Show Cause?  Disputes that cannot be undone once a certain party takes action are often ripe for preliminary injunctions.  For example, issues related to children are sometimes appropriate for Orders to Show Cause.  If one spouse intends to “kidnap” a child and leave the country in contravention of a custody agreement, a court may be inclined to intervene immediately.  However, timeliness is a critical factor in these matters.  If the spouse intends to take the child on an international vacation in three months’ time, a court would be less likely to hear the matter as an Order to Show Cause and would encourage the parties to convert the matter to a regular motion.

The Order to Show Cause can be an effective tool for resolving issues of pressing importance, especially when they cannot be “undone” at a later date.  However, courts disfavor the Order to Show Cause when it is misused by litigants to get an expedited adjudication of a dispute which could be heard in the ordinary course.  Therefore, litigants should use the Order to Show Cause sparingly and only in the case of a true emergency.

Katherine A. Nunziata is an associate in the Family Law Practice Group of Riker Danzig Scherer Hyland & Perretti LLP and a contributor to the Riker Danzig Family Law Blog. Katherine’s interest in family law stems from a desire to help others while navigating a difficult process, and she brings a high level of compassion and zeal to her practice. Katherine is a resident in the Morristown, New Jersey office and can be reached at 973-451-8445 or knunziata@riker.com.