Divorce attorneys and family law lawyers in Portsmouth and Dover, New Hampshire frequently handle emergency and ex parte motions in NH divorce and parenting actions. Emergency and ex parte motions are often denied by New Hampshire family division courts because the moving party does not understand the applicable law or procedural requirements which govern these motions. This blog post will attempt to clarify this commonly misunderstood area of NH domestic relations law.
“Failing to notify the other party of an emergency or ex parte filing is a major reason why so many of these motions are denied.”
Emergency and Ex Parte Relief in New Hampshire Divorce and Parenting Actions – The Legal Standard
Emergency and ex parte relief in New Hampshire divorce and parenting cases is governed by New Hampshire statutes (RSA 458:16 and RSA 461-A:9) and a corresponding court rule (NH Family Division Rule 2.9).
The party filing a motion for emergency or ex parte relief must show that immediate and irreparable harm will be done to a party, the children or the marital estate (in divorce actions) before the other party can be heard on the issue. Notice by the moving party of the intent to file an emergency or ex parte motion usually must be given to the other party or his/her attorney in enough time to allow him/her to object to the motion.
What does “immediate and irreparable harm” mean in a New Hampshire Emergency or Ex Parte Motion?
NH divorce lawyers and New Hampshire divorce attorneys know that “immediate and irreparable harm” has a very specific meaning in divorce and parenting cases.
“Immediate” harm is one that will happen now, very soon, or before the family division court can hold a hearing on the issue. An example of an immediate harm would be when one party has a substance abuse problem and is exercising his/her parenting time with under the influence of alcohol, opioids, narcotics, etc. The party under the influence represents an immediate harm to the child because s/he cannot safely parent him/her – his/her judgment is impaired and s/he therefore will fail to appreciate the risks and hazards presented to the child by a given situation.
“Irreparable” harm is one that is permanent and cannot be fixed. The example given the previous paragraph is a good example of an “irreparable” harm because the child is very likely to be permanently harmed, either intentionally or unintentionally, while in the care of the impaired parent. Another example of an irreparable harm is the threatened destruction of a valuable marital asset by one party.
Do I have to give the other party notice of my emergency or ex parte motion in a NH divorce or parenting action?
Yes, absent extenuating circumstances. Notice to the other party is an essential element in emergency or ex parte motions in NH divorce and parenting actions. The party filing the motion must tell the other party of his/her intent to file the motion in time for the other party to go to the family division court and object to the proposed emergency or ex parte relief. In fact, the moving party must state in the motion what efforts s/he made to notify the other party of his/her emergency or ex parte filing. This requirement can be satisfied by the moving party either orally or in writing, so long as the notice is given with enough lead time to allow the other party to appear at court and contest the motion.
Failing to notify the other party of an emergency or ex parte filing is a major reason why so many of these motions are denied. Courts understand that it is fundamentally unfair, absent truly extenuating circumstances, to grant one party relief without hearing from the other party. The presence of the other party is important to the family division court because the truth of the allegations in the emergency or ex parte motion are best measured by hearing contrary testimony from the other party.
Will the NH family division court hold a hearing the same day an emergency or ex parte motion is filed in a NH divorce or parenting action?
It depends on how busy the family division court is when the emergency or ex parte motion is filed. If the family division court’s docket is full, the court will typically issue a written order granting or denying the emergency or ex parte relief sought and scheduling the matter for a hearing within thirty days. Docket permitting, the court will hold a hearing on the day the motion is filed, listen to the testimony of the parties, and issue an order.
What happens if my motion for emergency or ex parte relief is granted?
If the family division court grants your motion for emergency or ex parte relief, the court will require you to have the order, and likely a Notice of Hearing listing the date on which a hearing will be held, served on the other party by sheriff. The court will instruct you on how to effect service by the sheriff. By rule, the court must hold a hearing within five days after the other party files a written request for a hearing.
What happens if my motion for emergency or ex parte relief is denied?
If the family division denies your motion for emergency or ex parte relief, the court will likewise require you to have the order, and likely a Notice of Hearing listing the date on which a hearing will be held, served on the other party by sheriff. The court will instruct you on how to effect service by the sheriff. At the hearing, you will have an opportunity to explain why the relief requested in the motion should be granted. The other party will similarly explain why the motion should be denied.
Do I Need a NH Family Law Attorney When Filing or Opposing an Emergency or Ex Parte Motion in a NH Divorce or Parenting Action?
Aggressive NH family law attorneys and divorce lawyers often are able to convince a family division court at an ex parte hearing to vacate an emergency or ex parte motion previously granted, or, conversely, grant an emergency or ex parte motion previously denied. This is because they have participated in countless ex parte hearings before yours and will participate is still more once your case is concluded. There simply is no substitute for an experienced New Hampshire domestic relations attorney when you are dealing with an emergency or ex parte motion in a New Hampshire divorce or parenting case.
Respected divorce attorneys in Portsmouth and Dover, New Hampshire. We can help you successfully navigate the complexities of emergency and ex parte motions in New Hampshire divorce and parenting cases. Read our client testimonials and learn why many of our clients consider us to be the best divorce attorneys in Portsmouth and Dover, New Hampshire.