When you first begin the divorce process, you will hear words and terms that may seem foreign. You may have heard you need to file a divorce “complaint,” ask the Court for an “ex parte” order, or file “motions” for many different reasons. At Conrad Trosch & Kemmy, our knowledgeable team of family attorneys can effectively and efficiently guide you through the process and explain issues and terms that you otherwise would have never heard of.

What is a divorce “complaint”?

A divorce complaint is a document signed by the person filing for divorce. It is filed with the Clerk of Court to initiate the divorce process. The complaint will set forth typically in very general terms what the plaintiff is asking the court to order; and it may include all of the issues the person filing for divorce wants the court to rule on (things such as alimony, temporary spousal support called post-separation support equitable distribution, child custody, and child support).

What is an ex parte court order?

Ex Parte is Latin for “from one side.” An ex parte court order is obtained by one party going to the judge to ask for something without giving prior notice or an opportunity to be heard by the other side.

Judges often are reluctant to sign ex parte orders without a clear emergency situation, because they are only able to hear from one side. In the normal course of business, the court requires the other side to have notice of any requests for court orders, and a hearing before the judge will be held.

An “affidavit,” which is a written statement sworn under oath, is usually required before a judge will sign an ex parte order. Ex parte orders are generally limited to emergency situations such as requests for emergency custody, temporary restraining orders, and domestic violence protection orders. North Carolina law will only grant emergency custody when there is articulable evidence that the child is facing imminent serious bodily injury or there is credible evidence that the child is being removed from the jurisdiction of the court (such as removing the child from the state) and that the Court will not be able later to bring the child back for future hearings. An Ex Parte Restraining Order can also be granted in a domestic violence situation to protect you and your family from an abuser.

When an ex parte order is granted, the party who did not request the order will have an opportunity to have a subsequent hearing before the judge to determine whether the emergency order should remain in effect. Typically, these “return hearings” are scheduled within a few weeks and the hearings often have strict time limits. That is why it is important to get legal counsel involved early to learn about and protect your rights.

What is a motion?

When your attorney asks the judge to order something, it typically is called a motion. There are procedural motions and there are substantive motions. Many motions are made to handle certain procedural aspects of your case, such as a motion for extension of time asking that the court extend a deadline. These procedural motions are important, but usually not critical to your case. In fact, many of the procedural motions are consented to by both sides as a matter of professional courtesy or to save their client’s money (why fight in court when you know how the judge is likely to rule?).

Other motions are more substantive and deserve more attention. These types of motions are more typically litigated in a court hearing. For example, your attorney may file a written motion with the court asking for temporary custody and temporary child support. The result of this motion may set a precedent for the rest of the case, making it of critical importance.

Motions do not always have to be in writing. In some cases, a motion may be made orally rather than in writing, such as when an issue arises during the course of a court hearing or trial. It is best practice to make most motions in writing as there are limits as to what motions can be done orally.

Other Legal Terms

There are many other confusing procedural and legal terms that you may encounter in the divorce process. Consider searching www.ctklawyers.com for some quick answers or if you need more explanation set up an appointment with one of our experienced family law attorneys, who can explain these terms and help you set up a plan of attack.

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