Filing an Ex Parte Motion in a California Divorce
An ex parte motion is a request for a court to do something without consulting the other side of the dispute or allowing the other side sufficient time to oppose the request. Judges don’t like ex parte motions very much, but they will grant them under limited circumstances. The same general considerations apply to ex parte motions in a divorce case.
Grounds for an Ex Parte Divorce Motion
California law authorizes courts to grant ex parte divorce motions in case of “immediate danger of irreparable harm” or “immediate loss or damage of property.” The key word here is “immediate,” because it is immediacy that justifies granting the motion and holding an emergency hearing before the other side has had time to properly respond or even learn of the motion.
Ex parte divorce motions that are granted a reasonable proportion of the time include cases of:
Domestic violence;
Child endangerment;
Anticipated child kidnapping; and
Financial harm (one divorcing spouse is destroying or hiding community property, for example).
A classic situational justification for an ex parte divorce motion would be if your spouse was sending you text messages containing threats of immediate violence. That would probably provide a legal justification for an ex parte order, and the text message format would likely provide enough evidence necessary to prove it.
Filing Process
To submit an ex parte motion, you must file an affidavit with the family court (an affidavit is a statement that you swear, under penalty of perjury, is true to the best of your knowledge and belief). The affidavit should contain:
A complete statement of the grounds for your motion. This statement should be carefully prepared so that it addresses the applicable legal standards in a persuasive manner.
A recitation of the current state of affairs and how the granting of the motion would affect them. Is there already an order in place that you are merely trying to modify? If you are seeking to change child custody arrangements, what arrangements are already in place and how do you propose changing them to deal with the emergency?
If the request involves a child, you must fill out Form FL-105 and file it with the court along with your affidavit. You must also notify your spouse (or whoever is the subject of your motion) by telephone no later than 10 am the day before the hearing.
If you cannot contact your spouse, you will be expected to explain why and to notify your spouse of the results of the hearing as soon as possible after it occurs. The ex parte hearing decision is only temporary. Another hearing will be scheduled, with your spouse formally notified well in advance, to make a final decision on your motion.
