Ex-Parte: Divorce Law’s Dirty Word

The word “Ex-Parte” is a latin legal term that means “by or for one party.”  In a divorce or family law action, it is not uncommon for the spouse who initiates a lawsuit to obtain Court orders at the same time a lawsuit is filed “Ex-Parte.”

Court Orders obtained “Ex-Parte” represent a decision of a judge made without the presence of all parties to the controversy.  When a Plaintiff, the person initiating the lawsuit, files the lawsuit, that spouse (or usually their attorney) can approach a judge and ask the judge to enter “Ex-Parte” orders. Common “Ex-Parte” orders include orders regarding the custody of a minor child, injunctions, sequestration orders, and restraining orders.

If the Plaintiff makes allegations that a minor child is exposed to a substantial risk of bodily injury or sexual abuse or that there is a substantial risk that the child may be abducted or removed from the State of North Carolina for the purpose of evading the jurisdiction of North Carolina, the Court can enter an Ex-Parte Order on Child Custody that changes the normal living arrangements of the minor child.

Injunctions are often entered Ex-Parte to prevent the sale, destruction or waste of marital property. Sequestration orders may be entered Ex-Parte to grant an exclusive right of use of a former marital residence to one spouse to the exclusion of another.  Restraining orders may be entered Ex-Parte when there are allegations of regarding specific assets and debts and the use thereof or allegations of domestic violence.

Normally, an attorney’s obligation is solely to their client and only presents their client’s side at a hearing. In an “Ex-Parte” proceeding, however, an attorney’s ethical obligations require the attorney to inform the judge of all material facts known to the lawyer to enable the judge to make an informed decision whether or not the facts are adverse.

After the entry of any “Ex-Parte” order in a family law case in North Carolina, a hearing must generally be held within ten days to allow both parties to present facts and allow the judge to determine whether the order issued “Ex-Parte” should remain in full force and effect, be vacated or modified.

The term “Ex-Parte” is also used to refer to improper contacts with a Judge without notice to the other party or counsel for that party — usually those that occur after the filing of the initial lawsuit.  Once a lawsuit has already been filed, a party and their attorney cannot generally have “Ex-Parte” communications with a judge with some exceptions.

An example of an improper “Ex-Parte” communication made national news in 2009 when a North Carolina judge and an attorney communicated by Facebook regarding an on-going child custody case.   Judge Terry of Iredell County was reprimanded by the NC Judicial Standards Commission for the contact via Facebook.  To prevent the appearance of impropriety, some states (e.g., Florida, Oklahoma) have banned it and others have issued ethical opinions regarding it.

But “Ex-Parte” does not have to be over Facebook, it can be any communication where one party or their lawyer speaks with the judge without the presence of the other side.

While “Ex-Parte” is sometimes appropriate and ethical — especially at the outset of a lawsuit to obtain needed orders, it brings significant risks for the attorneys and the judge.