Ex Parte
Generally, in a dissolution matter, if a party wants the court to make an order, he or she will file a request for order, an “RFO,” using the court form FL-300. Once that RFO is taken to the court for filing, the court clerk will assign a hearing date. This date is usually many weeks in the future, perhaps months.
Unless the court orders a different time, the party who files an RFO must serve the RFO on the other party by mail at least 16 court days plus 5 calendar days before the hearing date if service occurs within California.[i] (Other deadlines apply for service outside of California.) The responding party then has an opportunity to file a responsive declaration using the court form FL-320.
Sometimes, however, emergencies arise during dissolution proceedings. In appropriate circumstances, a party may wish to seek relief from the court on an emergency basis by requesting emergency orders. This is known as an ex parte application.
The purpose of an ex parte application is to address matters that cannot be heard on the court’s regular hearing calendar.[ii] In this type of proceeding, notice to the other party is shorter than in other proceedings. Notice to the other party can also be waived under exceptional and other circumstances as provided in these rules.
An ex parte application may be used to request that the court make very specific kinds of orders, including:
(1)Make orders to help prevent an immediate danger or irreparable harm to a party or to the children involved in the matter;
(2)Make orders to help prevent immediate loss or damage to property subject to disposition in the case; or,
(3)Make orders about procedural matters, including the following:
(A)Setting a date for a hearing on the matter that is sooner than that of a regular hearing (granting an order shortening time for hearing);
(B)Shortening or extending the time required for the moving party to serve the other party with the notice of the hearing and supporting papers (grant an order shortening time for service); and,
(C)Continuing a hearing or trial.[iii]
Thus, although what constitutes an emergency may differ from person to person, the kind of emergency that justifies an ex parte application is narrowly defined. Absent circumstances listed above, no emergency sufficient to justify addressing the matter on an emergency basis exists. This does not mean that the court will not hear the matter; however, if the court declines to hear the matter on an ex parte basis, the matter will be set for hearing on the court’s regular hearing calendar.
In order to request emergency orders, a party will prepare an FL-300 and any supporting documents exactly as he or she would for a regular request, plus an additional written declaration regarding notice of application for emergency orders based on personal knowledge. A Declaration Regarding Notice and Service of Request for Temporary Emergency (Ex Parte) Orders (form FL-303), a local court form, or a declaration that contains the same information as form FL-303 may be used for this purpose.[iv]
Generally, a party seeking emergency orders must contact the other party no later than 10:00 a.m. the court day before the emergency hearing stating with specificity the nature of the relief to be sought; the date, time, and place for the presentation of the application; and the date, time, and place of the hearing, if applicable. The applicant must also attempt to determine whether the opposing party will appear to oppose the application (if the court requires a hearing) or whether the opposing party will submit responsive pleadings before the court rules on the request for emergency orders.[v]
A party must also make an affirmative factual showing in written declarations demonstrating why the matter is appropriately handled as an emergency hearing, as opposed to being on the court’s regular hearing calendar.[vi] This means the applicant needs to present facts showing irreparable harm, immediate danger, or any other statutory basis for the court granting relief without notice or with shortened notice to the other party.
Thus, if during divorce proceedings circumstances arise that may lead to some kind of immediate irreparable injury, a party does have the ability to act fast and hopefully neutralize the issue. So long as that party gives the appropriate notice to his or her spouse and lays out facts in a written declaration to the court showing the irreparable injury (or other circumstances) justifying emergency relief, that party may bring an ex parte application before the court as soon as the next day.
[i] See the FL-300 information sheet.
[ii] 2018 California Rules of Court, Rule 5.151 (b).
[iii] 2018 California Rules of Court, Rule 5.151 (b).
[iv] 2018 California Rules of Court, Rule 5.151 (c)(4).
[v] 2018 California Rules of Court, Rule 5.151 (e)(1).
[vi] 2018 California Rules of Court, Rule 5.151 (d)(2).