Do You Need an Emergency Order for your Divorce?

Fear, anger, resentment, and retribution often drive a divorce case, particularly right after the papers have been served. Your partner may have taken all the money that was in your joint accounts. Your partner may be refusing to allow you to have visitation with the children. Your partner may have told you that she is moving far away and going to take the children with her. Your partner may be interfering with your peace of mind by constantly emailing, calling, or showing up at your home or work. You probably want to go to court tomorrow to ask the judge for help.

The family law court will generally make orders after a procedure is followed which requires the party requesting the relief to give the other party proper notice of that proceeding. That notice is required to be provided about one month before the proceeding. This notice requirement had its genesis in the due process clause of the Constitution. It would not be consistent with our ideals for a court to make orders that affect people’s parental or property rights without giving those people a chance to put forth their position.

An exception to this rule is when such harm is being done that when brought to a court’s attention the court can make immediate orders. These emergency orders are called Ex Parte orders. These orders remain in effect until there is a full hearing on the requested relief. A victim of domestic violence can obtain an emergency temporary order from the police and then can proceed to the family law court to seek further protection as may be necessary.

So when is this emergency relief warranted?

It’s available in a very limited number of cases. The court can make emergency orders if they are necessary to prevent an immediate danger or irreparable harm to a party or to the children involved in the matter, or to help prevent immediate loss or damage to property. Immediate harm includes physical and sexual abuse of children or immediate risk that a child will be removed from the State of California.

Some examples of good reasons to file for an emergency order are:

  • The other party is moving or has moved out of the state with your child without your permission
  • You and/or your child have been physically and/or sexually abused by the other party
  • The other party is selling or disposing of important community property assets
  • The other party refuses to give your child life sustaining medication
  • Escrow on a property is closing and the other party is going to take all the funds

Some examples of not so good reasons to file for an emergency order are:

  • You want to go on vacation with your child and the other party will not cooperate with you
  • Your child does not want to go with you for visitation
  • The other party will not give you access to one of your vehicles
  • The other party has not paid you child support or spousal support
  • Your child is going to get his/her body pierced
  • The other party insists on attending your child’s soccer practice during your visitation time
  • The other party has taken your child to McDonald’s

The specific facts of your situation will determine whether your case warrants emergency relief. It is probably a close call. Just because your situation may not warrant an emergency order does not mean that it is not important. It does mean that you need to follow the proper procedures for a noticed proceeding. This allows the court to hear both sides and make a decision accordingly.