When married couples separate, it is not uncommon for them to move on with new lifestyles before officially ending the marriage. Without making the divorce official, several items remain up in the air, such as child custody, property ownership and the ability to legally remarry. When it is difficult or inconvenient for an individual to contact their spouse regarding divorce proceedings, the law offers ex parte divorce.
Definition of Ex Parte
The translation of the Latin, “Ex parte,” is “without the other party.” In ex parte divorce proceedings, only one party is present, and it occurs in a jurisdiction where only one spouse lives.
Purpose of Ex Parte
In some cases of divorce, the spouses reside in different states and cannot easily meet at the same time in the same place to finalize the divorce. For example, one spouse may move away to evade the divorce proceedings or to join a new partner. In some extreme cases, no one can find the other spouse at all. Without ex parte, this could cause a delay in the case or prevent it from happening. With ex parte, the case can continue with the spouse who remains in the area where he or she filed for the divorce.
Requirements of Ex Parte
To file for ex parte divorce, the filing party must live within the jurisdiction of the court for a specified minimum time. Each spouse must be fully aware of the divorce for an ex parte to take place. This can be done with a personal notice, mailed divorce petition or third party server. However, the courts serve this person, it needs to be done so at the first reasonable opportunity unless doing so would cause harm to the serving party. The initiator of the divorce must ensure his or her attorney offers the service of the divorce notice properly to prevent rejection of the case or invalidation of the judgment.
Elements of an Ex Parte Application
The law requires specific components to be included in an application for ex parte divorce. The law requires the name and contact information of the attorney on the form, as well as a factual declaration as to why the hearing is necessary. If the initiator sent a previous application to the other party, he or she must disclose the notice of the other application. The initiator’s attorney must concisely write, without lengthy explanation, each part of the application to make it easier for the judge to make a quick determination.
What to Expect at an Ex Parte Divorce Hearing
Sometimes, the courts rule ex parte applications using only the paperwork initiator provides, which means it is especially important to fill the application out completely and correctly. In rare cases, the judge may allow for an oral argument or testimony, but this is not common.
Complications of Ex Parte
Ex parte proceedings make it difficult to determine custody or settlements. According to California law, applicants can file ex parte custody applications when there is an emergency matter that could cause “immediate danger or irreparable harm.” When there are no children from the marriage, applicants can request settlement orders if it could prevent “immediate loss or damage to property.” It can be hard to obtain approval for child and non-child ex parte custody applications if the situation is not an emergency.
If you are wanting a divorce, but your spouse is hard to contact, an ex parte divorce could be right for you. Make sure you meet the residency requirements of the state for filing an ex parte divorce. You and your family law attorney can work to ensure your spouse has the proper notification of the impending divorce proceedings. At Boyd Law we offer some of the best divorce lawyers in San Diego to help navigate the specifics of an ex parte case. If you need custody or property settlement proceedings as well, be prepared to prove it is an emergency.