Overview of Ex Parte Motions in Divorce
California law describes situations where ex parte motions in divorce are proper. Specifically, there must be cause such as “immediate danger or irreparable harm,” or there must be a threat of “immediate loss or damage to property.” In a divorce, ex parte motions are proper if there is domestic violence, child endangerment, child abduction, or immediate financial harm. If one spouse has proof of child abuse, or evidence that the other spouse is planning on taking a child out-of-state without approval, then they should file an ex parte motion. If one spouse has evidence that the other is planning on destroying or removing and hiding community property assets, that may also be a situation where an ex parte motion is proper.
Why Judges Deny Ex Parte Motions
Unfortunately, judges deny most ex parte motions. Why is this so? First and foremost, without an immediate threat of harm, the court has no authority to rule on an ex parte motion. More often than not, divorcing spouses file ex parte motions in situations that are not truly emergencies. What seems like an emergency to a parent, may not actually be an emergency to a judge. For example, the court does not consider situations when a party misses alimony payments or does not follow a visitation schedule as being true “emergencies.” Even instances of one spouse sending the other harassing texts and emails without threats of violence, an ex parte motion is inappropriate because there is no threat of immediate harm.
How to File an Ex Parte Motion
If there is truly an emergency, a party can file an ex parte motion. In the case of harm to a child, you can file an affidavit that explains your concerns about the other party harming your child. As part of the motion, you show the dates of each harmful incident as evidence. The motion should also include detailed information about any current orders and what changes the party is requesting to existing orders. For example, if someone is filing an ex parte motion about custody, the motion should explain the current custody arrangement, why you need to change the order and propose an alternative solution. When children are involved, the motion must include a Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (FL-105).
California requires the moving party to give timely notice of the ex parte motion hearing to the other party. At minimum, the party requesting the ex parte motion must call the other party before 10:00 a.m. the day before the hearing. If the requesting party is unable to give notice, they must explain their attempts to contact the other party, and why they could not get a hold of them. On the other hand, they may need to explain why there is a good reason for no notice. Even if the person requesting the motion is not able to call the other party before the hearing, they would still need to tell the other party about the hearing and its outcome.
Professional Help is Important for Ex Parte Motions
If a situation is important enough to call for an ex parte motion, it is important enough to get professional help with the paperwork. You don’t have to hire an expensive attorney, but we do recommend hiring an experienced legal document assistant. A legal document preparer can prepare all the required paperwork for a fraction of the cost an attorney charges. More importantly, using a legal document assistant will help to present your motion and background story in a professional way.
A People’s Choice has been in the legal document preparation business since 1980. We have helped thousands of people just like you successfully present their ex parte motions in divorce. Contact us today for immediate help. We are only a phone call away, and our convenient online interview allows us to start your documents without you having to take time off work!
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