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Mara Law, P.A.
Mara Law, P.A.

Emergencies and Divorce

Wed, Sep 21, 2016 at 10:42AM

Divorce can be an especially stressful time in the lives of both adults and children. A Google search for "divorce stress" recently yielded approximately 40 million results. Even an amicable and respectful divorce process is full of emotional challenges. So, it should not be surprising to you that a high-conflict divorce can wreak havoc on the lives of all involved.

A common occurrence during such high-conflict cases is what parties characterize as "emergencies." After all, when one journeys through a divorce, he or she is often emotionally compromised and the nervous system is overtaxed by ongoing, high levels of stress. It follows that the lens through which he or she views conflict and "bumps in the road" during this stressful time, is often different than when life conditions are calm.

This "lens" can cause us to perceive emergencies where others would see an everyday fracas. When you are going through a Florida divorce, you may be in the midst of what emotionally feels like a true emergency. And you may try to enlist your attorney in filing a motion for such a predicament. It feels urgent, and you believe something must be done to remedy the situation.

Please know, the Florida Courts in divorces cases are particularly discerning when it comes to emergency motions. And to make matters more complicated, these are decided on a case by case basis. Some motions which are based on what we think are "no brainer" emergencies are not granted, and others that appear to be on the periphery of what would be characterized as an emergency, are granted.

Chapter 39 of the Florida Statutes and Loudermilk v. Loudermilk (693 So. 2d 666) give us a clearer sense of what is considered an emergency in the case of children.

In Chapter 39, we repeatedly see the words "abuse," "abandonment," and "neglect" in reference to children and the responsibility incumbent upon any person suspecting such conditions for a child, to call the Florida Department of Children and Families hotline at 800-962-2873. These are the types of events/conditions that the Court considers an emergency. When a child is part of any situation where these things may be happening, you must act. As you can imagine, these words are meant to convey the serious nature of anything we would deem child abuse.

There is gravity in these words. For example, "neglect" does not mean Mom allows the kids to watch hours of TV while she is busy posting cat videos on Facebook. Sure, it may be considered neglect of another sort, but not the kind as defined by our Statutes. Neglect as per Florida Statutes 39.01(44) refers to "when a child is deprived of, or is allowed to be deprived of, necessary food, clothing, shelter, or medical treatment or a child is permitted to live in an environment when such deprivation or environment causes the child’s physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired."

You see the difference.

In Loudermilk, a case appealing the granting of an emergency order, we receive similar guidance. The Court in this case tells us that it is only under "extraordinary circumstances" that an order may be granted for temporary custody without notice to the other party. It is only in those situations where "a child is threatened with harm or where the opposing party plans to improperly remove the child from the state."

Perhaps your spouse is unwilling to be flexible in timesharing during the holidays, and you had big plans to take the children on a special trip. Maybe you and your spouse have diametrically opposite parenting styles, and you believe it urgent and in the best interests of the children to radically change the temporary timesharing arrangement. The children are not being endangered in either of these situations, but at the moment, you want things to change. Immediately. However, it is unlikely that your motion will be granted unless either one or a combination of the previously discussed factors is present.

For guidance on non-child emergencies (most of the time these are related to assets and liabilities in the divorce), look to Florida Rules of Civil Procedure Rule 1.610(a)(1)(A) "Injunctions." We are usually seeking to stop or "enjoin" a party from taking an action that will have a detrimental effect on the other party. Examples of this are draining a bank account, encumbering real property with a lien, committing "waste" on an asset, or taking a loan out on a 401(k). This rule dictates that the affidavit or verified pleading must state that "irreparable injury, loss, or damage" will result to the person filing the motion (the "movant") prior to the person purportedly doing the harm (the adverse party) being "heard in opposition."

These kinds of examples can be distinguished from non-threatening, albeit nasty e-mails or less-than-congenial behaviors (For threatening communication where you fear for your safety always call 911). I know putting up with this kind of stuff is annoying and emotionally draining, but it is not the stuff that makes for an emergency motion being granted.

We would be honored to help you understand your rights and responsibilities in your Florida family law matter. Please call Mara Law, P.A. at 386.672.8081 to schedule your consultation.


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