Ex parte orders can be full of 'surprises'

By Marie E. Matyjaszek

Personally, I’m not a fan of surprises unless it involves presents, preferably sparkly and 14 carat. 

Professionally, it would be an ideal world to have ample notice before every hearing, for every client to tell the truth (and nothing but the truth), and to never get a panicked phone call that an ex parte order was just served on my client. 

What is an ex parte order you ask? 

Well, if you have the right circumstances, a court can sign an order awarding you the relief that you seek in your motion, without giving notice to the opposing party.

The order itself is not enforceable until the opposing party is served with it, because obviously you can’t abide by something you know nothing about.

The court has the authority to issue an ex parte order pursuant to Michigan Court Rule (MCR) 3.207, if it “is satisfied by specific facts set forth in an affidavit or verified pleading that irreparable injury, loss, or damage will result from the delay required to effect notice, or that notice itself will precipitate adverse action before an order can be issued.”

Here’s a good example of a common reason for an ex parte order in a divorce case:  John has filed for divorce. This makes his wife, Jane, very mad, so she drains the bank accounts and starts cashing in savings bonds to give herself as much money as possible before the inevitable split of assets in the divorce. Naturally, John is not happy about this turn of events, so he asks the court to issue an ex parte restraining order, prohibiting Jane from taking money out of their accounts, such as bank accounts, 401(k) holdings, whole life insurance policies, etc., and to prevent her from spending or hiding the money she has already plundered. If John had to provide Jane with notice that he filed a motion, and had to wait for the court hearing, there’s a good chance Jane might use that week or so of time to do exactly what John is trying to prevent her from doing.  Then, after taking all of their riches, Jane hops on a plane with her destination being any country that doesn’t have extradition to the United States. 

Ex parte orders for custody, parenting time, and support are also entered by the court, especially if there is an unfortunate situation such as domestic violence between the parties, abuse of a child, or issues with drugs or alcohol.

In these cases, if the moving party had to wait to give notice of the hearing, there is the concern that the abuse would continue or worsen, neglect of the child would occur if parenting time was not supervised, or that a parent may all together disappear with the minor child.

Specific language advising the opposing party of their right to object to the order, and what happens if they fail to object, must be included in the ex parte order itself.

Be aware that even if you object to an ex parte order that you are served with, you still have to follow the terms of that order until you have the hearing on your objection.

Even then, it’s not a guarantee that the judge will change the terms of the order. The objection time period is very short — only 14 days — so you have to act fast if you are unhappy with the order (which is a very good assumption).

Ex parte orders are not something judges take lightly, and neither should you.

It is imperative that you provide ample evidence that what you are seeking is immediately necessary and that your order contain the mandatory language set forth in the court rule.  

My last piece of advice:  when the opposing party is served with the ex parte order, I would suggest skipping the usual surprise party balloons—somehow I don’t think they will make the occasion a happy one.
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Marie E. Matyjaszek is a family law attorney whose blog site is: http://legalbling.blogspot.com. She can be reached by e-mailing her at matyjasz@hotmail.com.