Restraining Orders

Is your spouse likely to behave badly when served with the divorce papers? Will he try to hide marital assets? Will she spend like crazy, running up big credit card debt? Might he run from the state with the children? If any of these are possibilities, maybe you need to ask the court to issue some restraining orders, which you can serve on your spouse with the summons and petition.

A restraining order is an order issued by a court that tells one or both parties they are not allowed to do a particular thing. For example, a restraining order could tell the parties they cannot sell or dispose of any of their property. Another example of a restraining order, also called an order of protection, tells one spouse to stay away from the other or limits contact in some way. If you decide you need restraining orders right from the beginning, you've also committed to going to court. You can request that the court issue an ex parte order, meaning the judge has only heard one side of things, but a hearing will likely be scheduled as quickly as possible so the judge can hear from both sides. Judges only issue ex parte orders in extreme situations, so if you really think you need one, be very specific about your reasons in the papers you submit to the court.

If your lawyer believes it's possible to get such an order, you'll need to prepare all the paperwork, plus a plea for emergency relief that sets out why the judge should grant it. Your lawyer will prepare an ex parte order or an Order to Show Cause, which she will take to the judge for signature before the papers are served on your spouse. These orders contain hearing dates at which time both sides can speak on the issues. Once signed, a temporary order directs one or both of the parties to do certain things.

Judges usually don't like ex parte orders unless they are absolutely necessary. Judges are especially cautious about issuing orders that throw someone out of his house. You must really need such an order and be able to justify that need. Seek this extraordinary relief only if you must, and make sure an emergency really exists.

The ex parte order is a temporary order, justified because an emergency exists, and is usually valid only until the hearing. In addition to those provisions that apply to both of you, depending on the circumstances, the order may give you temporary use and occupancy of the house, use of a car, or temporary custody of the children. It may also order your spouse to pay you temporary child or spousal support.

If the court issues an ex parte order, a hearing will also be scheduled, usually within a couple of weeks, so both parties can attend and present their version of the situation. Ex parte orders can apply to one or both spouses depending on the situation. There is no limit to the type of relief that can be requested in an ex parte order, but what a court will order varies greatly from jurisdiction to jurisdiction.

Order to Show Cause

An Order to Show Cause is usually the legal document that accompanies a request for emergency orders. It is similar to a Notice of Motion except there is no waiting period between the time you file your papers and the receipt of a temporary order. This document, along with your affidavits, is presented to the judge, ex parte. The Order to Show Cause can contain specific orders that if signed by the judge have the full force of temporary orders. The Order to Show Cause demands that your spouse appear in court and show cause as to why your requested relief should not be granted. For example, the Order to Show Cause may contain a provision ordering your spouse to pay you a specified amount of temporary support, and your spouse will need to explain why this shouldn't be necessary.

If you obtained an ex parte restraining order or your spouse is too angry and upset to meet and negotiate, you'll need a temporary court order that will stay in place until another temporary order replaces it or until the final judgment and decree is issued. To get that temporary order from the judge, you'll need to bring a motion.

Depending on the laws of your state, your lawyer may or may not have to provide your spouse's lawyer with a copy of the Order to Show Cause before taking it to the judge. Not all courts in all states will issue such an order, but if your court will do so, it will provide you with some temporary relief until a hearing can be held. Once the Order to Show Cause is signed, the papers get served on your spouse.

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