Mechanics of a Divorce – Ex Parte Orders

How to divorce in Texas

In the past, I wrote about the advantages and considerations that go into being the Petitioner  which is the party that files first (https://www.planoattorney.net/blog/should-i-file-first-part-1-2015-03-174).  One of the biggest, decisions and subsequently advantages to being the Petitioner involves Temporary Orders, more particularly, getting them sooner rather than later.

Since the Petitioner does not know if the matter will be contested or not, he or she has to make a decision at the start of the case when hiring a family law attorney and filing the case.   Do you ask for temporary orders?  Is a request for Ex Parte Temporary Orders appropriate and if so, do you forgo ex parte relief in the hopes of keeping things civilized?  Keep in mind that if the Petitioner elects to not seek temporary orders and the Respondent wants to fight, the Respondent may request the Judge issue temporary orders, in which case the Respondent becomes the movant and gets to go first for that one hearing. 

Generally speaking only the Petitioner has the option of seeking Ex Parte Temporary Orders, something the respondent can only do in very limited circumstances.  Because Ex Parte Orders are an extreme remedy, they are usually requested commensurate with a Protective Order or Restraining Order.  Ex Parte Temporary Orders are Orders from the Court, issued at the onset of the case without hearing and are based on very limited testimony – usually in an affidavit attached to the request.  Ex Parte Orders are used when seeking some affirmative and immediate relief, such as protection from harm at the hands of the other party, exclusive possession of the house, or immediate possession or access to the children.   As such, Judges do not give these orders lightly, so the Petitioner does not get Ex Parte Orders by simply asking, there must be some basis, ie: violence, threats, significant fear, prior attempts to snatch the kids, etcetera. 

Ex Parte Orders are not appropriate in every case.  They are also difficult to get because the Judge has to make a decision based on only one side of the story (ex parte necessarily means one party is not present or their side of the story is not presented.)  Because of this, the granting or denying Ex Parte Temporary Orders is very much a matter of discretion to the Court and triggers a 14 day timeline to notice the other side, give them a copy of the affidavit and orders rendered and then let them have an opportunity to be heard by the court.  In other words, ex parte orders expire unless you do something fast.  Temporary orders however, are made by the court with both sides present or at least provided an opportunity to be heard and these orders last until replaced by the Court with a final order.  

NOTE: Temporary Orders are treated differently in different courts. Accordingly, you should always hire a lawyer that practices in the jurisdiction where you case will be filed.  As an example: Collin County, Texas (where Reeves Law Firm maintains offices and the majority of our practice) has a  20-Minute rule on temporary orders. This means that if you ask for Temporary Orders in a family law case in Collin County, Texas, you and your attorney have only 20-Minutes to put on your case and cross examine the other party and their witnesses.  The purpose of the rule is to make you get to the point and only ask for temporary orders if you need them.  

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