Domestic violence laws are in place to protect victims of abuse and provide them with a swift and effective remedy.
Ex parte relief is an important mechanism under these laws, which allows for quick emergency orders of protection without the abuser being present or notified.
However, when this relief is obtained too easily, it can be misused by those seeking to gain a strategic advantage in related legal matters, such as divorce.
In such cases, innocent parties can be unfairly excluded from their homes and children while the accuser exploits the statutory scheme to further their own interests.
In this article, we explore the problem of ex parte relief misuse and the consequences of such abuse.
What is Ex Parte Relief?
Ex parte relief is a legal procedure in which a judge issues a temporary order without giving the other party notice or an opportunity to be heard.
This type of relief is typically reserved for emergency situations where immediate action is necessary to prevent irreparable harm.
Examples of situations where ex parte relief may be appropriate include domestic violence, child abuse, or threats of harm.
Frequent Ways That Domestic Violence Statutes Are Misused in Divorces
Unfortunately, some parties in divorce cases misuse ex parte relief to gain an unfair advantage. This can occur in several ways.
1. Order of Protection to Obtain Temporary Custody of The Children
I have frequently seen parties seek an ex parte order for temporary custody of the children, even though there is no evidence of abuse or neglect.
The party may do this to disrupt the other party’s visitation schedule or gain leverage in negotiations.
2. Order of Protection to Get A Spouse Out of The Marital Home
Orders of protection can sometimes be misused to get a spouse out of the marital home during divorce proceedings.
In some cases, one spouse may file for an order of protection against the other spouse, even if there is no evidence of domestic violence or abuse, to gain exclusive possession of the marital home.
By obtaining an order of protection, the other spouse will be forced to leave the marital home and may also have restricted access to their children.
3. Order of Protection to Freeze Marital Assets
Another way ex parte relief can be misused is by seeking an order to freeze marital assets. This can be especially damaging if the party seeking the order has no legitimate claim to the assets in question. In some cases, the party may seek an ex parte order to prevent the other party from accessing joint bank accounts or other assets. This can create financial hardship for the other party and make it difficult for them to hire an attorney or pay their bills.
Two Stories Illustrating Exparte Relief Problems
Over the last 30 years, I have seen abuse of the ex parte order of protection statute in Missouri. I want to give you some examples of how people can misuse the Order of Protection Statute.
In the first situation, the client was a woman experiencing marital difficulties with her husband. After an argument that included talk of divorce, the husband obtained an ex parte order of protection, claiming that he was afraid of his wife due to things said during the argument.
The order excluded the woman from the marital home and gave the husband custody of their children. However, the order was later dissolved, and the woman was able to return home and regain custody of her children with the help of legal assistance.
In the second situation, the client was a young woman who argued with her considerably older husband, which ended with her leaving the house.
The husband obtained an ex parte order of protection based on the allegation that the woman had pushed him while he was holding their child.
This order also excluded her from the marital home and gave the husband custody of their child. Although the woman had defenses to the order of protection, she gave up contesting it, and the husband successfully exploited the statutory scheme for strategic advantage in their divorce proceedings.
Overall, the misuse of ex parte relief can harm individuals falsely accused of domestic abuse and undermine the credibility of the statutory scheme designed to protect genuine victims of domestic violence.
It is essential for courts to carefully evaluate the merits of ex parte orders to ensure that they are not granted on weak or non-existent grounds and to prevent the misuse of the statutory scheme.
Protecting Yourself from Misuse of Ex Parte Relief
If you are facing a divorce proceeding, it is crucial to protect yourself from the misuse of ex parte relief. Here are some steps you can take:
- Document Everything: Keep detailed records of all communication with your spouse and any incidents of abuse or threats of harm. This can help demonstrate to the court that an ex parte order is unnecessary and can also be used as evidence in court proceedings.
- Seek Legal Advice: If you are concerned about the possibility of an ex parte order being issued, seek legal advice from an experienced family law attorney. An attorney can help you understand your rights and options and can also represent you in court proceedings.
- Challenge the Order: If an ex parte order is issued against you, challenge the order as soon as possible. This can be done by filing a motion to vacate the order or seeking a hearing to present evidence in your defense.
Related Article: How To Fight a Restraining Order and Win: Tips From Legal Experts
Is it Illegal to File a False Request for an Order of Protection?
It is illegal to file a false request for an order of protection. Doing so is considered perjury, a serious crime that can result in criminal and civil penalties.
Perjury involves knowingly making false statements under oath or affirmation in a legal proceeding. In the case of a false request for an order of protection, this would include making false statements about domestic violence or abuse to obtain an order of protection against the other spouse.
In addition to criminal charges, filing a false request for an order of protection can have serious legal and financial consequences. The falsely accused spouse may be able to sue for damages related to the false accusations, and the person who filed the false request may be held liable for these damages.
It’s important to note that even if a person believes they are in danger, they should not make false accusations of domestic violence or abuse to obtain an order of protection.
This not only puts the falsely accused spouse in a difficult position but can also have serious consequences for the person making the false accusations.
Ex parte relief is an important legal tool that can be used to protect individuals from harm in emergencies.
However, it can also be misused in divorce proceedings to gain an unfair advantage. If you are facing a divorce proceeding, it is vital to protect yourself from the misuse of ex parte relief.
By being proactive, documenting everything, seeking legal advice, and challenging any unfair orders, you can help ensure that your rights are protected and that you receive a fair outcome in your divorce.