Archive for February, 2011

Emergency Relief in Divorce

Tuesday, February 15th, 2011

Also know as “show cause,” an Order to Show Cause grants a party – for example, a battered wife in a situation of domestic violence – emergency relief, sometimes the same day the application is made. An order to show cause is supported by the applicant’s sworn affidavit why the immediate relief is necessary and appropriate – for example, to prevent an abusive husband from entering the marital home.

The court can also set the case for oral argument at a later date, which is called a return date, when the parties must return to court and show cause why the order should not be granted in the applicant’s favor.

An order to show case can be brought with notice to both parties. In the case of emergency situations, however, such as situations involving the health and safety of a victim of domestic violence, it may be filed without notice. In this case it is called an ex parte order to show cause.

Sometimes court orders are issue ex parte to avoid giving notice to a defendant, for example, in the case when he or she might quickly sell property disputed in a marital settlement.

Protection from abuse orders typically work through the order to show cause procedure.

Finding a Friendly Court

Monday, February 7th, 2011

Forum shopping is not illegal, but it can make litigation more difficult for the opposing party.

Forum shopping happens when one party fights for a change of venue for a lawsuit. The goal is to move the action to a jurisdiction where the law is more favorable to his or her position. For example, a person may find it more advantageous to his or her position to file for divorce outside of California, which is a community property state. He or she may elect to opt for an equitable distribution state, where the wealthier spouse may retain more of the marital estate. The reverse is also true: California’s relatively generous divorce laws may make the Golden State appealing to the spouse of a wealthy man.

Of course a divorcing couple cannot just pick and choose the jurisdiction.

The court must have jurisdiction over them, and this means that they must meet residency requirements. However, sometimes the rewards of forum shopping make the quest worth the effort, and some divorcing Hollywood celebrities have used this method to their advantage.

On a smaller scale, sometimes people file for divorce in the next county when they want to escape the attention of the hometown newspaper.