RULE 8.2. INTERIM ORDERS IN DOMESTIC RELATIONS CASES
(a) Ex Parte Interim Order.
(1) No interim order may be issued except
on notice and hearing unless the court
specifically finds exceptional circumstances. Exceptional circumstances include:
Threat threat of imminent danger to any party or minor child
of the party; or
Circumstances circumstances indicating that an ex parte
interim order is necessary to
protect the parties, any minor children of the parties, or the marital estate.
(2) No ex parte interim order may be issued unless the
party executes an
affidavit setting forth specific facts justifying the issuance of the order. A restraining and
eviction order may not be issued ex parte unless the movant also appears personally and
good cause is shown for issuance of the order.
The provisions which may be included in an An ex parte
interim order are may include
provisions relating to temporary parental rights and responsibilities, support and other
appropriate expenses, use of real or personal property, restraining, and eviction.
(4) If there has been an appearance in the action by the
opposing party, or if the
attorney for the moving party has knowledge that the adverse opposing
party is represented
by an attorney, the attorney for the moving party shall must notify the
court. After receiving
notice of the appearance or representation, the court shall must attempt
to hold an emergency
hearing, either in person or by telephonic conference, at which both parties may be heard,
before issuing any order. The issuance of an order following an emergency hearing will in
no manner affect a party's right to a further hearing on the merits of the order as provided
in Rule 8.2(a)(5).
(5) An ex parte interim order
issued ex parte must
specifically provide specifically:
That that a hearing upon the necessity for the issuance of the
order or the amounts to
be paid be held within 30 days of the issuance of the ex parte interim order, unless an earlier
hearing is required under N.D.C.C. ch. 14-07.1, or an application for change of venue is
pending. If the ex parte interim order contains provisions delineated in N.D.C.C. ch.
14-07.1, the hearing must be scheduled in a timely manner to conform with
That that the party obtaining the ex parte interim
order must secure a hearing date and
personally serve the ex parte interim order and a notice of hearing on the opposing
That that the hearing on the ex parte interim order may be
waived if the opposing party
not obtaining the interim order files a written waiver with the court no later than
before the hearing date. The written waiver must be served on the moving party
obtaining the ex parte interim order.
(6) The ex parte interim order remains in effect until it is amended following a court hearing.
(b) Interim Orders
Upon on Motion and Hearing.
(1) Support. An interim order may provide for payment of support and other appropriate expenses. In the event support is ordered, a current mailing address must be listed for both parties.
(2) Parental Rights and Responsibilities. An interim order providing for temporary parental rights and responsibilities and a parenting schedule of minor children may be granted, in which case the order must provide for reasonable parenting time, unless the evidence establishes that parenting time should be restricted to certain times and places or prohibited.
(3) Attorney's Fees and Costs. An interim order may provide for payment of attorney's fees and costs if evidence establishes that a party has insufficient personal income or funds with which to pay attorney's fees and costs.
(4) Use of Property. An interim order may provide for the use of real or personal property, and for restraining and eviction.
(5) An interim order may not be amended except upon stipulation of the parties or in the event of a material change of circumstances.
(c) Payment. The interim order must provide for any spousal support payment, child support payment, or combined payment of child support and spousal support, to be paid to and through the State Disbursement Unit. Payment must be in a manner acceptable to the State Disbursement Unit unless otherwise ordered by the court.
(d) Time for Hearing Upon Notice. If a notice of motion and motion are served to obtain an interim order, the court shall hold a hearing no later than 30 days from the date of filing the motion. If venue is changed before the hearing for an interim order is held, the hearing for an interim order must be held no later than 30 days after venue is changed.
(e) Submission of Evidence.
(1) Financial Statement. In any proceedings under this rule, each party
shall must file an
itemized financial statement prepared as illustrated in appendix B.
(2) Affidavit. Unless the court otherwise orders, evidence either in support of or in opposition to the interim order must be presented by affidavit. Evidence presented by affidavit may not be considered unless, at the time of the evidentiary hearing, the party offering the affidavit makes the affiant available for cross-examination.
(3) Time for Service and Filing.
The affidavits and itemized financial statement of
moving party must be served and filed no later than ten days prior to the commencement of
the hearing. Respondent's affidavits and itemized financial statement must be served and
filed no later than three days prior to the commencement of the hearing.
(A) Moving Party. The affidavits and itemized financial statement of the moving party must be served and filed no later than 21 days prior to the hearing.
(B) Responding to Initial Motion. If the respondent does not raise any new issues, the respondent's affidavits and itemized financial statement must be served and filed no later than seven days prior to the hearing.
(C) Respondent Raising New Issues. If the respondent raises new issues other than those raised in the initial motion, the respondent's affidavits and itemized financial statement must be served and filed no later than 14 days prior to the hearing. If the moving party responds to new issues raised by the respondent, any affidavits must be served and filed no later than seven days prior to the hearing. A new issue means any issue listed in subdivision (b) not raised by the moving party.
(4) Order of Proceeding. The party initially seeking interim relief
must proceed first
at the hearing.
Rule 8.2 was amended, effective September 1, 1983; January 1, 1995; March 1, 1996; March 1, 1999; March 1, 2001; October 9, 2002; August 1, 2009; March 1, 2010; ______________.
A motion for a change of venue must be promptly ruled
upon in order
on to accomplish the
Committee's intent for interim orders to be expeditiously heard.
Subdivision (a)(5) was amended, effective March 1, 2010, to provide, unless waived, a mandatory hearing upon the necessity for the issuance of the order or the amounts to be paid be held within 30 days of the issuance of an ex parte interim order.
Subdivision (b)(5) was added, effective March 1, 2001.
Subdivision (c) was amended, effective March 1, 2001; October 9, 2002. When an order for child support or spousal support is entered, the order must provide for payment to and through the State Disbursement Unit.
Paragraph (e)(3) was amended, effective _____________, to change the time periods for service and filing of affidavits.
Sources: Joint Procedure Committee Minutes of April 29-30, 2010, pages 7-9, 27; January 28-29, 2010, pages 7-8; September 24-25, 2009, pages 10-11; May 21-22, 2009, pages 44-45; September 26-27, 2002; September 28-29, 2000, pages 9-10; January 27-28, 2000, pages 19-21; April 30-May 1, 1998, pages 8-9; April 27-28, 1995, pages 9-15; September 23-24, 1993, pages 16-17; April 20, 1989, page 17; April 26, 1984, page 17; September 30-October 1, 1982, pages 18-21; December 11-12, 1980, pages 3-4 and 7.