Ex Parte Orders

How hard is it to request of the court that they sign an “Ex Parte order,”  without a court hearing and without the other party being present to object?

The answer is “difficult” at best, and depending what the facts and circumstances are that give rise to the request.

“Ex parte” is a Latin legal term that can best be described as unilateral or one sided. The court in considering approving an ex parte order must be convinced that there are exigent and extraordinary circumstances to grant such an order.  In Wisconsin, an ex parte motion is a motion for temporary relief that can be requested in a family law action or other civil court proceeding seeking an extraordinary remedy.

s. 801.15 (4) governs ex parte motions in Wisconsin:

(4) A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than 5 days before the time specified for the hearing, unless a different period is fixed by statute or by order of the court. Such an order may for cause shown be made on ex parte motion. When a motion is supported by affidavit, the affidavit shall be served with the motion; and opposing affidavits may be served not later than one day before the hearing, unless the court permits them to be served at some other time. All written motions shall be heard on notice unless a statute or rule permits the motion to be heard ex parte.

Courts do not particularly like ex parte motions because the courts are very busy, and since this would not be scheduled  on their calendar, the court has  to take the time the time to read the motion and affidavit that describes why the request is  being made; then they have to further assess and weigh the urgency of the order being sought, against the other party’s right to due process under the 14th amendment, to be provided notice and an opportunity to be heard, with issuing a unilateral, one sided court order, all without a formal hearing.

Then the court has to be concerned about scheduling an immediate court date to have the ex parte court order served on the other party and arranging for a court hearing in the space of 2 weeks or so, in order for both parties to appear in court, to determine if the order should be extended or dismissed.

Under what circumstances then would the court consider granting an ex parte order? Given the important legal and constitutional issues concerning due process, expect for routine and ordinary issues in an average divorce case, that the court would deny the request. The facts and circumstances has to arise to a level that the court would have no choice but to issue the ex parte order for the protection of the parties, their minor children, or property issues involved in the case. Such examples of where an ex parte motion may be appropriate involving minor children may be where a minor child is in imminent danger, where there is evidence of child abuse, child neglect, a parent is threatening to leave take the minor children away from the other parent by more than the 100 statutory mile limit, or where a parent may be unfit due to drug, alcohol or mental health issues.

An attempt to obtain an ex parte order, should not be taken lightly. A person is well advised to check with an attorney first, if they are pro se, to determine the viability of filing such a motion; if the party is already represented by an attorney, they cannot file motions on their own, and must have their lawyer do it for them.