In a contested divorce, an emergency can exist when the health or safety of the parties or children is in danger.  This is distinguishable from obstinate or aggravating behavior.

Every now and again, I have a case in which one side, or the other, doesn’t want to divorce, but isn’t wiling to change any behaviors or compromise in any way to save the marriage. Often times, the couple will have been through marriage counseling, with only one side making any real effort to fix what’s wrong. The other spouse will simply go through the motions, paying only lip service to the idea that a successful marriage requires real effort from both individuals.

At some point, the spouse who’s really trying will realize the futility of the effort and hire me to file a divorce complaint.  That’s when the gaming can really ramp up.  The non-filing spouse will avoid service of process as long as possible.  Once they’re served, they’ll refuse to move out of the marital residence.  They won’t hire an attorney to answer the complaint.  They’ll do everything within their power to portray to family and friends that they are a victim of the filing spouse’s selfish desire to destroy the family.

In these cases, the filing spouse needs to ask the Court for a temporary order for possession of the marital residence and physical custody of the children.  Doing so requires a motion, service of the motion on the non-filing spouse, and a hearing in front of the Judge.  After hearing sworn testimony from both sides and reviewing any evidence, the Judge will issue an order that will govern the status of the parties while the divorce is pending.

This is different from those unfortunate situations in which one spouse poses a danger to the health and safety of the other spouse, and/or the children.  In those cases, the spouse in danger can present evidence to the Judge ex parte, without the other side being present.  This is an emergency hearing.  Emergency filings have very specific requirements and your attorney can help you decide whether your particular circumstances meet the legal standard for an emergency under Alabama law.

While the situation I described at the beginning of this post is certainly annoying and it sets the stage for a contentious divorce, it is not an emergency under the law.  That being said, do not hesitate to contact the proper authorities if you find yourself in a situation in which you fear for your safety or the safety of your children.  Call 9-1-1 first.  Then, once you are out of danger, call your attorney.  If you have questions or concerns about your current circumstances, you can contact me at 251-445-0891, or via email at ron@mcbaylaw.com.

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