Litigants going through a divorce have a perception that nearly everything about their case is “urgent” or an “emergency.” From the lawyer’s perspective and the court’s perspective, most of what the parties may feel is urgent or an emergency, rarely is. However, there are situations that truly are urgent and can be considered an emergency, particularly where the well being of a minor child may be involved, where threatened physically or emotionally, or a parent has made threats to indicate that they may be a flight risk with taking the child.
If you file a standard motion with the court, at best before the family court commissioner, you may be looking at a court date 30-45 days out. If before the trial court, you are probably looking at a court date 45-60 days out; that hardly helps when there may truly be an urgent or emergency situation as part of going through a divorce. What remedy does a litigant have?
Temporary orders may be issued “ex-parte” upon the filing of an affidavit under oath. “Ex-parte” means that the requirements of notice and an opportunity to be heard under the 14th amendment are set aside, at least on a very short temporary basis. With the filing of an ex-parte motion or petition, only one party is given an opportunity to be heard. The other party is not noticed of the request and is not afforded the opportunity to argue against the issuance of such an order.
There would need to be an urgent or emergency type of matter to file such an ex parte petition. Further, there needs to be detailed facts and allegations contained in the petition or motion, under oath, to convince the court that such an ex parte order should be issued. What usually happens in these situations, is that the petition and affidavit are filed with the court, and the litigant and/or their attorney personally walk it into the trial judge assigned to the case. The petition and affidavit are presented to the court clerk and they are explained the gravity of the situation to the clerk. The clerk will then take the petition and affidavit to the trial judge for their review. The trial judge may decide to do that in open court or may take it back to chambers and review it privately. Some judges may decide to sign the ex parte order based on the petition and affidavit, and other judges may insist on taking some brief testimony from the party who is making the request for the ex parte order.
If the ex parte order is issued, the court will direct that a conformed copy be personally served on the other party as soon as possible, and will also issue an order that both parties appear and show cause they the temporary order should not be continued during the pendency of the litigation. Expect a court hearing as soon as 2 weeks from the issuance of any type of ex parte order, depending on how busy the court’s may be and what the nature of the urgent matter was that resulted in the ex parte order being issued.
Ex Parte orders arguably infringe on important constitutional rights under the Fourteenth amendment and they will be granted only under the most extreme, exigent circumstances. s. 801.145 (4) governs the procedure in Wisconsin for ex parte orders in Wisconsin.
If you have questions about procedures with court orders when getting a divorce in the state of Wisconsin, contact the experienced family lawyers at Karp & Iancu, S.C. today.
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Milwaukee, WI 53226
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