It’s crucial to remember that ex parte orders are difficult to get in Michigan. This is because, like most people, Michigan family law attorneys favor maintaining family unity and believe in the rights of children.
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What to anticipate if you’re a target of an ex parte order.
Your initial thought may be to become anxious if your spouse has filed an ex parte motion against you. Your first concern will be for your kids. Any parent who wants the best for their child will typically respond in this way. Find out what ex parte really means in Michigan.
The good news is that ex parte orders are rarely required in divorce situations.
Are You Sure It’s Ex Parte Order?
Latin legal jargon for “from one party” is “ex parte.” Ex Parte orders are those that are submitted to the court without a hearing or a request for the other party’s consent. An order is often made after the court has had a chance to hear from both parties. Ex Parte orders differ from regular orders in that the order is entered first and the hearing is scheduled for a different time.
Ex parte refers to improper interaction with a party or a judge in the context of legal ethics. A lawyer is often not allowed to speak with the judge or the opposing party without the other party’s attorney present as well, according to ethical guidelines. This policy is broken when improper ex parte interaction occurs.
Ex parte motions for orders are those granted in civil procedure without requiring a response from the opposing party. Typically, these are revocable decrees like a temporary restraining order only in effect while additional hearings are pending. These are orders within the context of divorce and child custody proceedings.
A court will typically be reluctant to file an ex parte motion. This is so because ex parte motions run the risk of infringing the excluded party’s right to due process because the Fifth Amendment and the Fourteenth Amendment guarantee a right to due process.
An Ex Parte order is more usually made when a divorce complaint is filed. Two Ex Parte orders are typically requested when a divorce complaint is filed: one to keep the parties’ financial condition stable and the other to stop them from transferring property while the divorce is ongoing. Ex Parte Orders may safeguard both parties from an unintentional liquidation of the marital estate during the divorce process.
These instructions essentially stipulate that neither party is allowed to act unusually during the divorce process.
An Ex Parte order is a potent tool that Michigan divorce attorneys will use to offer protection when time is of the importance.
In What Situations Can An Ex Parte Order Be Entered?
There’s always a great risk accompanying the issuance of ex parte orders. It is the reason why courts are reluctant to act on motions for ex parte orders. There is always the risk of infringing on certain individual rights. There are really very few justifications for ex parte orders.
What are the few justifications for issuing an ex parte order?
An ex parte order may be issued for a variety of reasons. Among the most typical are:
To protect a child
An ex parte order may be issued to protect a child who has experienced physical or sexual abuse. Before making a decision possibly affecting a parent’s custody rights, the court could request more proof to support the moving party’s claims.
Child abuse is of particular concern to the state and to parents in general. In a 2018 report on injury and violence in Michigan, assaults or deliberate harm are the second most common reason for hospitalization for injuries in children under the age of one.
Homicide is the most common cause of injury-related mortality for children between the ages of 1-4, and it ranks second nationally for this age group. In Michigan, it is the third most common cause of injury-related death for children between the ages of 10 and 14 and the second most common cause of injury-related death for children under the age of one and between the ages of 5 and 9.
Other child-related situations might result in the issuance of an ex parte order. However, different jurisdictions and courts have different rules about whether actions will result in ex parte orders.
For instance, some judges might issue an ex parte judgment in response to unpaid child support, truancy, or a refusal to abide by a recent order, while others might not.
To prevent inflicting harm to individuals (like your spouse).
A protection order for a victim of domestic violence is one of the most often issued ex parte orders. Courts all around the country are required to award ex parte orders when someone alleges they have been mistreated by a family member, domestic partner, or another individual.
This is also a particular concern especially among women considering the considerable cases of assault and stalking perpetrated on them. In Michigan, more than 25% of women claim to have had a rape at some point in their lives (this includes perpetrators who may be known or unknown to them).
According to the same survey, rape, physical abuse, and/or stalking affect roughly 42 percent of women in Michigan during the course of their lifetimes. Victims do not always seek medical attention or assistance from law enforcement.
The ex parte order is valid until the conclusion of a hearing, which frequently happens a few days or weeks after the ex parte order was issued.
To prevent significant financial harm
Another circumstance in which an ex parte order might be issued is if waiting for the conclusion of the regular proceedings could result in significant financial injury. If a party would suffer financial ruin if the court does not take immediate action, an ex parte order might be made. If a party is damaging marital property or acting in a way that could jeopardize the other party’s financial or property interests, the court may also issue an urgent order ordering them to stop.
There isn’t a form for an ex parte motion or an ex parte order to decide on child support, parenting time, or custody at the moment.
When a party cannot wait for a hearing, ex parte orders are offered to the court. For instance, if a parent pulls a child out of school to gain an advantage in a divorce case, a court is unlikely to wait until a later date to determine the case and issue an Ex Parte order compelling the child to return to school. The court would schedule the hearing for a later time so it could hear the arguments.
When a Complaint for Divorce is filed, an Ex Parte order is more frequently entered. When a divorce complaint is filed, two Ex Parte orders are frequently requested: one to maintain the parties’ financial situation and the other to prevent them from transferring property while the divorce is pending. Both parties may benefit from these Ex Parte Orders’ protection from an unintended liquidation of the marital estate throughout the divorce process.
These orders effectively state neither party may take any unusual actions while the divorce is pending.
When time is of the essence, Michigan divorce lawyers will employ an Ex Parte decree as a powerful weapon to offer protection.
Read more about Ex Parte Orders in our article, “How To Get An Emergency Temporary Custody Order In Michigan” and how it is use for protection.
How Do You Challenge An Ex Parte Order?
Because the whole point of an ex parte order is for the opposing party to take action against you without informing you or your attorney, challenging an ex parte order before it is entered can be a bit challenging. In most cases, you are only able to act on the order once you receive it.
Now you are receiving this ex parte order because your spouse and subsequently the court are convinced you are about to act out or take the following actions justifying the order:
- Harm your child directly or indirectly, intentionally or accidentally
- You intend to leave with the children without the consent of the spouse
- Harm your spouse directly or indirectly, intentionally or accidentally
- Move, liquidate, or destroy marital assets or enter into a transaction changing the financial status quo or making your spouse impoverished.
- Any related or similar action above when consummated cannot be undone.
The only course of action is to object to the ex parte order after you have actually received it.
After receiving the ex parte order, you have 14 days to file an objection and motion if you want to contest it and amend it. Your lawyer can walk you through the forms needed to be completed to be able to set the hearings.
The friend of the court must try to settle the conflict within 14 days of receiving your objection after you’ve filed your objection and motion.
If the friend of the court is unable to mediate the conflict, the matter will be scheduled for a hearing by the friend of the court.
At the hearing, you have the option of representing yourself or hiring legal counsel. Unless specifically authorized by the court, the friend of the court office is not required to conduct an inquiry or provide a report. At this hearing, neither party is being represented by the friend of the court.
Take note, the FOC is not representing any party in this process. It is not representing you nor the opposing party.
If you’re in the receiving end of an Ex Parte Order, you may want to read our article, “How Can I Fight An Ex Parte Order In Michigan?” to get a view of how to count Ex Parte Orders.
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Goldman & Associates Law Firm is here to with information about Child Custody and Divorce in the State of Michigan.