This month I want to continue the discussion on the mechanics of a divorce. Most clients have seen very little of the process and it is just that, a process. In two previous articles, we discussed the advantages to being first to file and ex Parte orders. You can review those articles at:
As a brief overview of prior discussions, there are advantages to being the person that files first, one of which is the ability to request Ex Parte orders and put the case on a fast track, at least a fast track to the temporary hearing. Ex Parte orders are granted only if the Judge, after reading your affidavit believes there is sufficient reason to issue the Ex Parte Orders and then there must b e a hearing within 14 days to follow up which will NOT be moved unless there is very good reason.
ExParte Orders can ONLY be requested at the onset of the case, whereas temporary Orders can be issued at any time during the pendency of the proceedings. Despite the fact TPOs can be asked for at any time, the purpose of the Temporary Orders is frustrated if not requested pretty early in the proceedings because TPOs serve to keep everyone on the same sheet of music as so to speak. The Temporary Orders instruct the parties on who will have custody of the children until the case is final, who will pay what bills, how the income will be divided and who will have use of the home, and may order a residence sold while the case is pending, etc. Again, either side can request these, but only the Petitioner can request ExParte Orders which do the same thing for just a few days and without the other side having any part or say. Accordingly, IF YOU HAVE SUFFICIENT GROUNDS FOR AN EXPARTE ORDER there is a substantial advantage to filing first.
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ExParte Orders are distinctly different than Protective Orders, Restraining Orders and Temporary Orders – though filing an Application of Restraining Order or Application for Protective Order may result in the issuance of Temporary Orders and both tend to cause the Court to at least consider Ex Parte Orders. The legal distinction is vast and as much a strategy issue as not – what the litigant needs to know is that if you have a sufficient bases for a Protective Order or Restraining Order, you probably have grounds for an Ex Parte Order.
Keep in mind, regardless of how an Ex Parte Order comes about, if granted a divorce or custody case in Texas, they trigger a very strict timeline. The Orders are only good for 14 days so the Judge MUST set a hearing inside of two weeks. Whereas, regular Motion for Temporary Orders only require the Court TRY to set the hearing as soon as possible and this can be a strategic advantage if the parties may be able to negotiate issues or communicate effectively enough to avoid the hearing. It can also buy time for a party that wants to move but needs a few weeks to get a place. Also note, standard temporary orders are important but chances are the court where your divorce or custody fight is filed is a court of general jurisdiction and the Judge may be scheduled to hear a complex civil matter, a capital murder trial, a juvenile adjudication, or even a case brought by the Department of Child Protective Services on the same day. Any one of these could take more time than planned and your temporary orders hearing could be bumped off the schedule. Adding to the scheduling problems of the court is service and notice to the respondent.
From a Petitioner’s perspective there are substantial advantages to an ExParte order: First and perhaps obvious – if the Judge finds grounds for an ExParte order to exist, the Judge has taken an early opinion and this puts the Respondent at a substantial disadvantage; second as previously stated, the time lines for the hearing on ExParte orders is short, the Respondent will be served with the ExPare Order and notice of the hearing at the same time, so he/she now must find a lawyer, hire that lawyer and get ready for a hearing in very short order.
Of course an ExParte request is not without dangers. One of the factors the Judge must consider when determining the best interest of the child is whether or not one party has made false allegations against the other parent. In other words, if you ask for the ExParte order, you must have good reason. Remember first impressions are important and lasting, lie to the Judge once and it will not be forgotten soon enough.