In the fields of family law or divorce law, legal definitions and terms can have important meanings. Your family law lawyer may even say them to you without thinking about the fact that you might not understand them. I know I’ve spoken to clients too quickly and I have used legal terms that they probably didn’t understand. I apologize.
In an effort to right any wrongs I might have made, I’ll try and explain a common legal term that very few non-lawyers understand. The legal term of the day is: ex parte.
Ex Parte, the meaning of:
The term ex parte is defined on Law Dictionary.com as:
(ex par-tay, but popularly, ex party) adj. Latin meaning “for one party,” referring to motions, hearings or orders granted on the request of and for the benefit of one party only . . .
This is an exception to the basic rule of court procedure that both parties must be present at any argument before a judge, and to the otherwise strict rule that an attorney may not notify a judge without previously notifying the opposition. Ex parte matters are usually temporary orders (like a restraining order or temporary custody) pending a formal hearing or an emergency request for a continuance. Most jurisdictions require at least a diligent attempt to contact the other party’s lawyer of the time and place of any ex parte hearing.
Wow, I probably couldn’t have explained all of those things to you. I’m glad I looked it up.
Here is what I normally tell clients about the term ex parte: it means I take your argument before the court to try to get immediate relief without the necessity of a formal, evidentiary hearing. I, as your lawyer, have to notify the other side, but I’m going to try to get in front of the judge as soon as possible (like right now) to get an ex parte order for you. Later, assuming I can notify the other side, we will have a hearing on the issue.
You may be asking yourself, so what? I’ll tell you why this is important: the legal system has been constructed on the idea of a two-party, equal-notice, equal- opportunity system. Courts are very careful about making decisions and giving order when the other party is not present and when the other party has not had an opportunity to respond.
Imagine this: what if your spouse went to court and tried to have the judge make a decision about your life based on only on what they want the judge to hear? Would you be upset? I would.
The equal notice, equal opportunity to be heard system is a hallmark of all law – dating back to the days of Roman Jurisprudence. Everyone is entitled to what is known as “due process” under the law. Due process, in layman’s terms, essentially means that you get to have notice of everything the other party does and everything the court does. There are no tricks.
With that background in mind, you can understand why ex parte court orders and proceedings are very unusual. In most courts, the judge can only issue an ex parte order on a very limited basis. Any such orders and the supporting documents that go with them, must be filed with the court, and the party requesting the order must show that service of process was given to the other party. (See the link for a discussion of service of process).
As the quotation from Law Dictionary.com states, ex parte orders are reserved for emergencies. In the family law context, this usually means that the court will issue an order to protect someone. Such orders commonly include: Temporary Restraining Orders and Protection Orders. The most common reason for a court to issue an ex parte order?: domestic abuse.
This doesn’t mean the other party won’t have a chance to be heard. Instead, in most states, a request for a Restraining Order must be personally served on the party to be restrained and it must notify that person of the time and place of a court hearing on the matters contained in the motion of petition.
I hope that explained the meaning of ex parte and what effect an ex parte order can have on your case. For more information on ex parte orders or how to go about filing for a temporary restraining order, you should talk with a divorce lawyer in Apple Valley MN or qualified family law lawyer in your community.
