The marriage relationship is one of mutual trust and respect. But when a new divorce case is filed, the relationship between spouses is turned on its head. Trust breaks down, secrets may be exposed, and the playing field is drastically changed. For this reason, it is sometimes necessary to file ex parte motions for relief on an emergency basis at the time the complaint for divorce is filed.
An ex parte motion is one decided by the judge without requiring the parties to attend a hearing. For ex parte relief to be granted, the moving party must show, through a sworn affidavit, that if the relief requested is not granted, irreparable harm will likely result. Most commonly, these motions are necessary when minor children are involved, or when one party is concerned that the other will liquidate or conceal marital assets, depriving the other of access to funds necessary to carry on until the divorce judgment is finalized. Another commonly utilized ex parte motion is one for exclusive possession of the marital home. Each of these will be discussed below.
Where minor children are involved in a Michigan divorce case, the parties have likely been residing together and sharing parental responsibilities and time with the children. However, when a complaint for divorce is filed, one party often leaves the marital home. A party’s absence does not deprive that parent of the right to spend time with the children. Even after the complaint for divorce is filed, both parents in reality have equal rights to spend time with the children, and to make important decisions regarding the children’s day-to-day care and upbringing. In order to avoid a chaotic situation where the parents are battling for power and control of the children, sometimes I file a motion for ex parte relief asking for temporary custody. Typically, this is done when a client fears that the other spouse may remove the children from the marital home, take them out of state, abuse them, or deprive the other spouse of access to the children. This often presents an extremely volatile situation which must be handled with skill and compassion. If a temporary custody order is entered ex parte, it will clearly define the rights of both parents, and may even set a temporary parenting time schedule for the noncustodial parent.
Another commonly utilized ex parte order is one preserving marital assets. Because these orders are almost always binding on both parties to the divorce and are intended to preserve the status quo, they are routinely granted. A motion seeking this type of order must be verified by affidavit. Sometimes I find it necessary to protect my clients through this type of order when they own liquid assets that could be easily concealed or dissipated, such as bank accounts, mutual funds, antiques, collectibles, or other readily salable items. If one of the parties is self-employed or has an ownership interest in a business, the other party can seek an ex parte order requiring that business assets also be frozen until a clear accounting of all assets is provided. The intent of these orders is not to deprive either party of the right to access funds as required in the ordinary course of business, but to prevent either party from dissipating marital assets in an effort to deprive the other of access, both on a temporary basis and as a final distribution in the judgment of divorce.
A third type of order I sometimes use to protect my client in conjunction with an order of temporary custody of the minor children, is for exclusive possession of the marital home. In the great majority of cases, married couples hold real estate jointly as husband and wife, affording both equal rights to occupy the marital home while the divorce is pending. In certain cases, due to the level of stress and anxiety associated with a newly filed divorce, one spouse finds it necessary to bar the other from residing in the home. This type of relief is commonly sought in cases of domestic violence. In less extreme cases, some judges will grant these motions on a mere showing that there has been arguing or verbal abuse in the presence of the children, resulting in emotional distress.
All ex parte orders are subject to a statutory objection period. For an order to be effective, it must be served on the other party, just as is done with the summons and complaint. All ex parte orders must state that the party served with the order may file an objection within 14 days, and that a hearing on the order will be held within 21 days or the order will become a temporary order. If you are served with any kind of ex parte or temporary order, provide a copy of it to my office immediately and discuss whether it would be advisable to file an objection. The procedural standards and showing required for an ex parte order can be technical. I can assist you in meeting the court's rigorous requirements for obtaining relief under an ex parte order.
In the emotionally charged early days of divorce, sometimes aggressive legal measures may be necessary to protect your rights. I am prepared to take whatever measures are necessary to see that you and your children, as well as your hard-earned assets, are fully protected. Call my Holland, Michigan office today if you would like to discuss how I can assist you in protecting what's most important to you in your Michigan divorce case.
© 2018 Thomas C. Kates, Attorney and Mediator