When it comes to divorce proceedings, many parties have heard of Ex Parte orders but are not clear on what they mean and how they apply to different family law cases. Ex Parte orders are truly emergency orders. They are common in family law proceedings but not always necessary. It is important to understand these differences before making a request for an Ex Parte order.
An Ex Parte order is one that is meant for emergency purposes and usually involves an issue that needs a quick resolution. Under California Rules of Court 5.151, the purpose of a request is “to address matters that cannot be heard on the court’s regular hearing calendar.”
In an Ex Parte proceeding, notice to the other party in the case is much shorter than it would normally be. In exceptional circumstances, notice can even be waived, but these circumstances are extremely limited.
How Do You Request an Ex Parte Proceeding?
To request an Ex Parte proceeding, paperwork must be filed with the court after proper notice is given, which can differ from county to county. Many counties require notice by 10 a.m. on the day before the hearing is set to be heard.
Notice needs to be something that is reasonably going to get to the other party, which usually means phone or occasionally email communication. In very rare situations, an Ex Parte hearing can be heard without short notice.
The contents of the notice are dictated by California Rules of Court 5.151, and they must include:
- the nature of the relief requested
- the time, date and place for the presentation of the application; the date
- time and place of the hearing, if applicable
- and some attempt to determine whether the other party will oppose the application
A Declaration Re: Notice of Ex Parte Application must also be included, which must state that either notice has been given to the other party, including date, time, and manner of notice and whether opposition is expected or that the applicant made a good faith effort to inform the other party but was unable to notify them, including listing the efforts made.
If notice was not given, California Rules of Court 5.165 states that the party must put facts in the declaration that show that exceptional circumstances justify the short notice. If no notice was given or a waiver was asked of notice, the party must file a written declaration, signed under penalty of perjury, that show good cause that notice was not given.
The judicial officer may approve the waiver if the facts show that giving notice would frustrate the purpose of the Ex Parte order, giving notice would result in immediate and irreparable harm to the applicant or the children who would be affected by the order, that giving notice would result in immediate or irreparable harm to or loss of property; or the parties agreed in advance that notice is not necessary with respect to the subject matter of the emergency order. If the party did make reasonable and good faith efforts to give notice to the other party, if further efforts would be futile or burdensome, the court may waive notice requirements.
Will the Court Grant the Order?
An Ex Parte application is the party’s way of telling the court that he or she needs an emergency order. Under the California Rules of Court 5.151, if immediate danger or irreparable harm is possible to a party or children, an emergency order may be necessary. The same would apply to damage to property if it is believed that an emergency order is needed to protect property.
Immediate danger or irreparable harm is always needed. Otherwise, the court may not be allowed to grant the order.
The reason for this immediate danger is to prevent parties from bringing frivolous or non-emergency applications under the guise of an Ex Parte application. It can be a slippery slope as to what a party considers an “emergency,” so case law makes these circumstances fairly restrictive.
An Ex Parte application can be a way to get a quicker hearing date or to shorten the time needed to get a hearing, but it still requires proper showing of immediate danger or irreparable harm. It cannot be used simply because a party does not like the date given to him or her by the court.
The facts as to why the quicker hearing date is needed must be clearly spelled out in the declaration accompanying the application. A family law attorney can advise the client as to whether an Ex Parte motion is even necessary in the client’s case before making this request to the court.
Contact The Voss Law Office Today!
If you are going through a difficult divorce proceeding and have questions about whether an Ex Parte order would be appropriate in your case, contact us today to discuss the best options for your case. Consultations are always free. Call us today at 323-333-4481.