Ex parte divorce is becoming a common form of divorce for spouses that disagree or when one of the parties isn’t keen on breaking up.
It’s all too common for divorce to bring out the kind of relationship a couple had while married.
Calm and collaborative spouses tend to have a smooth divorce process, but that’s not the case for a couple that has had one too many quarrels. This article offers insight on what ex parte divorce is and how it works.
What Is an Ex Parte Divorce?
Ex parte divorce is a type of divorce that involves orders the court enters without the presence of the party. It’s based solely on one spouse filing a divorce petition and occurs in the jurisdiction where they live. The court then uses its power to set custody, visitation rights, and restraints on the use of property such as cars and bank accounts.
“Ex parte” is a Latin phrase translated to “without the other party.”
Ex parte divorce normally arises in two scenarios:
Where one partner fails to cooperate or respond to filings and where one spouse lives in another state or can’t be located to be served with divorce papers. For example, your partner may decide to deliberately not attend the divorce proceedings or start a life with a new partner. Also, in some cases, you may not locate your spouse at all. These situations can cause a divorce case, but luckily, an ex parte divorce gives the filing spouse a path to a valid divorce.
How To Win an Ex Parte Divorce Hearing
Currently, the grounds for an ex parte hearing are a little less strict. This is because sometimes we get too hesitant to get a divorce since we are scared of our partner’s reaction. Getting ex parte divorce can dramatically simplify the process since you only need to prove that this type of divorce is the best solution for your case.
To prove the need for an ex parte order, you’ll have to submit some documents and proof of harm that will occur if an order is not put in place.
Useful evidence that can work in your favor includes:
- Proof of the other party’s dangerous behavior, such as arrest records
- Past court orders on your behalf
- Proof of threat messages, or phone records, and
- Proof of significant financial irresponsibilities such as embezzlement or gambling.
– Ex Parte Judgment
An ex parte judgment is not guaranteed even with all the above evidence because many judges prefer to award both parties a right to due process.
If you consider this kind of order, you should come prepared with expert legal representation.
Since a contested divorce takes many forms, many courts now allow ex-parte divorce. For example, you may be living with an abusive partner who is prone to anger, or your spouse is simply not likely to cooperate with the divorce process. Ex parte divorce grants you the freedom to separate from your spouse without their participation in court.
Under family law, there are some requirements you need to meet to file for ex parte divorce. For example, most states have set specific minimum residency requirements for divorce filings. You may need to establish residency for a certain time if you have recently moved to a new state before filing a divorce petition.
Each spouse should be fully made aware of the divorce either through a personal notice, mailing the petition, or using a third party. The person filing for a divorce should ensure that the divorce notice is served properly by the attorney to prevent rejection of the case or invalidation of the judgment.
If your spouse has moved to another state, cannot be located, or has refused to respond to the filing, the court may delay your case as you provide sufficient notice to them. The notice requirements depend on the state of residency.
Divorce cases that involve decisions relating to child support or custody may delay an ex parte divorce. Most judges prefer to make such decisions with the other party present. However, the court can decide to award ex parte custody rights to the filing spouse if they present the right documentation.
– What Constitutes an Ex Parte Application?
The data you should include in an Ex Parte or one sided divorce application include:
- The attorney’s name and contact information
- A factual and detailed declaration explaining why a divorce hearing is necessary
- The initiator should disclose the notice of all applications that were sent to the other party.
- Finally, the attorney of the spouse filing for ex parte divorce should write a summary of the entire application for a quick determination by the judge.
Most courts rule ex parte applications using only paperwork from the divorce initiator. Thus, it’s crucial to fill out the application form correctly. The judge may allow for an oral argument or testimony, but this is rare.
– What Is an Ex Parte Order?
An Ex Parte Order is often the first step toward an ex parte divorce and is granted as a form of protection from a partner who poses a danger to the spouse. Ex parte divorce is related to but not the same as an ex parte order, but both are beneficial if you are looking to separate from a dangerous or uncooperative spouse.
For example, leaving an abusive partner can be dangerous as they may decide to cause more harm in pursuit of revenge. In such a case, the court must review and grant a temporary emergency order within ten days. This order immediately begins to protect you as you await the determination of your divorce case. An ex parte order can graduate to an ex parte divorce whereby only one of the two spouses participates in the divorce process.
Examples of ex parte orders include preventing the other party from destroying property, taking the child out of the country or state, and a restraining order. A judge will also grant an order to protect a child who is being physically or sexually abused.
– Should I Wait and Let My Spouse File for Divorce First?
No, the partner who first files a case in court gets the privilege of asking for an ex parte divorce. When your spouse files a divorce petition, they may make allegations against you and have a notice sent to you. If you fail to appear in court as per the notice, the court will allow the case to continue in your absence. Save yourself the hassle and be the first to apply for a divorce. Also, there’s a low probability that the court will file an ex parte order against the spouse who filed first.
– Does an Ex Parte Divorce Have any Complications?
In most cases, no. The court does a thorough job before granting ex parte divorce to the filing spouse. There is no complicated procedure to getting an ex-parte divorce. For example, if you have a problem with the wife not attending divorce case even after the service of notices for her to do so, the court will declare her as ex parte and proceed with the case.
However, this type of divorce makes it difficult to determine custody, visitation, and property division. Also, it can be hard to obtain child custody if the family law judge is convinced that the situation isn’t an emergency. If your partner is willing to permanently give up custody of a child to you, ensure that this is clearly stated in the petition for an easier ex parte divorce process.
Going through a divorce is hard enough on its own. An uncooperative spouse makes the process even more difficult. The court acknowledges this and gives room for ex parte divorce. Let’s have a quick summary of all the important points to remember about ex parte divorce:
- Ex parte divorce is a divorce process the court enters without the presence of the other party.
- The person who first files a case in court gets the privilege of asking for an ex parte divorce.
- An ex parte divorce is granted when one spouse cannot be located or fails to cooperate with the divorce process.
- To win an ex parte divorce hearing, you need to meet the state’s minimum residency requirements and submit documents supporting your claim to the court.
- If your spouse has moved to another state, cannot be located, or has refused to respond to the filing, the court may delay your case as you provide sufficient notice to them.
Winning an ex parte divorce may not necessarily be a smooth affair. Your spouse may decide to sabotage the process by showing up to the court proceedings or putting together a case in their favor. Whatever the situation you are in, be prepared to defend and win your case in court.
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