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4 Smart Ways to Fight an Ex Parte Order in a Divorce

Michael Tierney
June 22, 2022

Divorce is a stressful and messy situation. Unfortunately, divorce brings out the worst in people and can lead to dangerous conflicts. Other times, it leads to petty actions that limit your rights with legal authority. Either way, the divorce process can lead to some complications you likely want to avoid.

Some situations are minor disagreements that are little more than drama quickly dissolved once a divorce attorney gets involved. Others are more serious and will take longer to overcome as you are forced into complying with certain legal provisions that prevent you from reaching out to resolve the issue outside of a courtroom. One such provision is an ex parte order.

Ex parte orders are usually only filled during divorce proceedings when one party feels threatened by their spouse. However, other circumstances allow for one to be executed against you. If you are the subject of an ex parte order, it can make your divorce even messier than it would have been otherwise. Fortunately, an ex parte order is not the end of the world should one be issued against you.

The only trick is that you will need to be smart to find a way to fight the order off and have its effects lifted. This article aims to provide insight on how to fight an ex parte order successfully.

What is an Ex Parte Order?

Before considering how to fight an ex parte order, we need to establish what one is. After all, there are far too many colloquialisms for legal documents for the average citizen to keep straight. An ex parte order is little more than another name for a temporary restraining order (TRO).

Requesting Ex Parte Order

Although ex parte orders are used for countless reasons outside of divorce proceedings, they are also featured prominently in divorce court. While the need for an ex parte order only arises in extremely belligerent cases, they are usually meant to protect the couple's finances.

Solution Ex parte orders prevent unauthorized visitation to any children the couple might have and separate an abusive spouse from their soon-to-be ex.

However, the primary purpose of ex parte orders remains financial and will prevent either spouse from performing any of the following:

  • Selling or transferring assets from joint or independent accounts.
  • Applying for loans that incur a large debt.
  • Altering the beneficiaries of life insurance policies, retirement funds, and other financial windfalls.
  • Removing the other spouse or their children from health insurance policies.
  • Canceling existing insurance policies.

Generally, an ex parte order focusing on the marriage's financial side takes effect automatically when the divorce proceedings begin. However, this depends on your state and will not always apply to you. If the divorce is in a state where the ex parte order is not automatic, one spouse must request one specifically. If they can prove it is necessary, the order will be granted and impact your ability to perform any major financial transactions. If the ex parte is granted, it generally remains in effect until the divorce is finalized, which can take months or even years, depending on your situation.

Given the financial limitation imposed by an ex parte order, finding a way around it might be necessary, especially if it seems like the divorce will drag on for some time.

Step #1: Point Out the Flaws

The first and most important way to fight an ex parte order is to read the order in its entirety to understand the restrictions listed fully. This might seem obvious and might make it seem more like compliance than an effort to fight against the order. However, understanding the terms of the ex parte order is extremely important to fight it effectively.

Solution This step is critical because it allows you to understand what you can and cannot do so you do not violate any of the provisions and restrictions cited in the order. Any violation of the ex parte order severely jeopardizes your chances of being able to have the ex parte lifted.

However, the ex parte order will also provide you with important details that you can use to find a way to lift the order.

Reading Through Ex Parte Order

Generally, an ex parte order will have the following information detailed on it:

  • Schedule: The ex parte order will have a schedule of when the court hearing to discuss the TRO is and when all response paperwork is due. This provides you with a timeline you can use to prepare your arguments and fill out any necessary paperwork.
  • Allegations: The ex parte order will outline your spouse's allegations against you. This information can provide the basis for your counterargument since you know why the TRO was filed.
  • Evidence: The ex parte order will also have a list of the evidence supporting your spouse's allegations. This helps with your counterarguments since you can clear up any misleading evidence.

Reading the ex parte order provides you with valuable information that is critical to fighting the order. Your chances of lifting the ex parte order plummet if you violate any restrictions or overlook the evidence section. The more information you have, the easier it is to point out the issues with the order. If you pick apart the reason your spouse filed the ex parte order, you can get it lifted.

However, reading the ex parte order for information is not the only way you can intelligently combat the TRO. There is another way to counter the ex parte order that can improve your odds of success.

Step #2: Gather Evidence

Another excellent way of combatting an ex parte order involves using the information you have gleaned from reviewing the TRO to gather evidence.

Gathering Documentation Evidence

Using your intuition or under the advisement of your attorney if you have retained one, you can begin looking for any of the following:

  • Physical Evidence: While the ex parte order will outline your spouse's evidence in their favor, you can gather physical evidence to counter their claims. This can include photographs, articles of clothing, video recordings, and other items you can use to prove the ex parte order wrong.
  • Documentation: Another powerful weapon against an ex parte order is to gather any data and documentation that disproves the allegations. This can include e-mails, transcripts of phone calls, text messages, handwritten letters, receipts, computer records, etc. This can help prove location and intent that directly counters your spouse's accusations.
  • Witnesses: This is a little more difficult to secure since it is not likely that anyone was present during the problem events. Any witnesses who can directly counter the allegations laid forth in the ex parte order can testify at the hearing. Having someone cast doubt on your spouse's claims is extremely useful in getting the order lifted.

A judge will preside over the hearing to determine if a permanent restraining order is necessary for the divorce. Since the ex parte is meant to be temporary until this is proven or the divorce is finalized, gathering evidence can help prevent a permanent order from being finalized. Any information that disproves or casts doubt on the allegations is beneficial to your cause, so gathering as much as possible will only help you.

However, all the evidence in the world might not be enough if you cannot present it properly. Often, the best way to fight an ex parte order is to have someone else do it on your behalf.

Step #3: Present Your Evidence to Your Attorney

When dealing with a legal battle of any kind, divorce included, your best bet will always be to consult with your attorney. No law states that you must retain counsel to combat the ex parte order.

Solution In any legal battle, you can waive your right to an attorney and represent yourself if you so choose. However, your odds of countering the ex parte order increase if an attorney represents you; if only because a divorce attorney will have a greater grasp on the finer points of the law and can employ tactics unknown to the average person.

Searching for a divorce attorney can be difficult since you will want one with a good record and substantial knowledge. Fortunately, this is still simpler than trying to represent yourself. There is only one major caveat regarding seeking an attorney for a divorce proceeding and lifting an ex parte order.

Presenting Case to an Attorney

While you might have heard of the Miranda Rights that entitles an arrested party to an attorney even if one cannot be afforded, this is not the case in civil matters. Divorce and TROs are civil matters, so the right to an attorney is not one that the court can fill for you.

Even though you are financially responsible for retaining an attorney, their expertise is worth the cost. They will be able to analyze the restrictions and allegations outlined in an ex parte order and cross-reference them with your counterarguments. They will compile the evidence you have to disprove the allegations and use their extensive knowledge of civil law to disarm the ex parte order on your behalf. This is not to say that having an attorney guarantees success. However, the odds are substantially better with them than without one.

Hiring an attorney, while extremely helpful, does not necessarily mean you are absolved of your role in the proceedings. Your attorney represents you, but you might want to remain an active participant as directed by your counsel.

Step #4: Attend the Hearing

The court hearing that determines if the ex parte order is made permanent is not something you are required to attend. Even if you lack an attorney, nothing is forcing you to go. However, not being present almost guarantees that the order will be made permanent and will deprive you of several rights. Even if you have an attorney, your presence will give the judge presiding over the hearing insight into your dedication. Lack of attendance at such an important hearing will make it seem as though you are not concerned with the situation.

Attending a Hearing

The hearing allows you to present your arguments and explain why your spouse's allegations are baseless. If you have an attorney, they will do most of the speaking for you, but your presence shows genuine interest and dedication to the proceedings. If you are not present and the ex parte order is made permanent, which is all but certain if you are absent, you risk losing out on negotiations for:

  • Child visitation and custody.
  • Child support, alimony, and other financial obligations.
  • Possession of vehicles and real estate.

If you are absent, these negotiations will still proceed, and you could find yourself getting saddled with a deal that favors your spouse over you. Whereas your presence will help ensure the ex parte order is not made permanent, and you retain your full range of rights.

Learn the Law

Divorce is messy and, unfortunately, can become an emotionally draining competition if your spouse is out to cut you from your family's life. Ex parte orders are meant to restrict you financially and limit how often you see people you care about, such as your children and pets.

While the ex parte is initially temporary, finding ways to turn the hearing in your favor will help lift the ex parte so you can live life as best. We know divorce is unpleasant, and these situations have no happy ending. However, knowing how to combat an ex parte order can ensure that the divorce gets as close to happy as possible.

Learning the Law

The knowledge necessary to combat an ex parte order is difficult to learn if you have no legal background. However, plenty of information can help you get a general idea of what needs to be done. Knowledge is half the battle regarding the law, and it is easier than ever to find the necessary knowledge. While we know nothing will undo the pain and stress of divorce proceedings, especially when an ex parte order is involved, learning the laws can make all the difference.

After reading today's article on ex parte orders, do you have any questions or concerns on the topic? If so, please feel free to leave a comment down below, or reach out and contact us at any time! We'd be more than happy to assist you in your divorce process however we possibly can!

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Written By:
Michael Tierney

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