N.D. R. Ct. 8.2

As amended through March 18, 2024

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:

(A) threat of imminent danger to any party or minor child of the party; or

(B) 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 moving party executes a declaration setting forth specific facts justifying the issuance of the order. A restraining and eviction order may not be issued ex parte unless the moving party also appears personally and good cause is shown for issuance of the order.

(3) An ex parte interim order 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 opposing party is represented by an attorney, the attorney for the moving party must notify the court. After receiving notice of the appearance or representation, the court 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 must specifically provide:

(A) 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 under the chapter;

(B) 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 party; and

(C) that the hearing on the ex parte interim order may be waived if the opposing party files a written waiver with the court no later than two days before the hearing date. The written waiver must be served on the moving party.

(6) The ex parte interim order remains in effect until it is amended following a court hearing.

(7) An ex parte interim order modifying parenting time may be issued postjudgment.

(8) No ex parte interim order modifying primary residential responsibility may be issued postjudgment.

(b) Interim Orders Upon 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.

(6) 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.

(7) 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.

(c) Motions for Temporary Modification of Residential Responsibility.

(1) No interim orders to modify residential responsibility may be heard unless the moving party files a motion to modify residential responsibility under N.D.C.C. 14-09-06.6 and Rule 3.2 and a motion for a temporary modification of residential responsibility under this rule and demonstrates the following:

(A) that there exists a threat of imminent danger to a minor child of the party; or

(B) that there are present circumstances indicating that an interim order is necessary to protect a minor child of the parties; and

(C) that good cause exists for the court to issue an order setting the matter on for hearing on shorter notice than provided under these rules and that a waiver for the requirements of Rule 8.3.1 is necessary.

If the moving party is able to demonstrate that the above criteria are met, the court must notify the parties and schedule the matter for a hearing on shortened notice as soon as possible.

If the court does not find that the moving party has met the criteria for an interim order the parties will be notified to proceed under Rule 8.3.1.

(3) Motions requesting a temporary modification of residential responsibility must 84 include the following notice:

PLEASE TAKE NOTICE that the moving party has requested expedited review of this Motion for Temporary Modification of Residential Responsibility and has requested that the court hold a hearing on this matter immediately. If the court grants a hearing on this motion, you will receive a Notice of Hearing with the specific time and date of the hearing. Any response to the motion for interim order must be received at least 24 hours in advance of the time scheduled for the hearing.

(d) Submission of Evidence.

(1) Financial Statement. In any proceedings under this rule, each party must file an itemized financial statement prepared as illustrated in appendix B.

(2) Declaration. Unless the court otherwise orders, evidence either in support of or in opposition to the interim order must be presented by declaration. Evidence presented by declaration may not be considered unless the party offering the declaration makes the declarant available for cross-examination. A party wishing to exercise his or her right to cross-examine any non-party declarant must notify the party proffering the declaration testimony at least 24 hours before the start of the hearing or may be considered to have waived the right to cross examination.

(3) Time for Service and Filing.

(A) Moving Party. The declarations 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 declarations 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 declarations 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 declaration 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.

N.D. R. Ct. 8.2

Joint Procedure Committee Minutes of April 24, 2020, page 4; April 26, 2019, pages 28-30; September 23-24, 2010, pages 3-7; 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.

EXPLANATORY NOTE

Rule 8.2 was amended, effective 9/1/1983;1/1/1995;3/1/1996;3/1/1999;3/1/2001;10/9/2002;8/1/2009;3/1/2010;3/1/2011;3/1/2014; 3/1/2021. A motion for a change of venue must be promptly ruled upon in order to accomplish the Committee's intent for interim orders to be expeditiously heard. Subdivision (a)(5) was amended, effective3/1/2010, 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 (a) was amended, effective3/1/2011, to add new paragraphs (8) and (9), clarifying types of ex parte interim orders that may be requested post judgment. Under N.D.C.C. § 14-09-06.6, notice is required prior to postjudgment modification of primary residential responsibility. If exceptional circumstances exist, a postjudgment modification of parenting time may be made ex parte. Paragraph (b)(5) was added, effective3/1/2001. Paragraph (b)(6) was amended, effective3/1/2001;10/9/2002. When an order for child support or spousal support is entered, the order must provide for payment to and through the State Disbursement Unit. A new subdivision (c) was inserted, effective 3/1/2021, to provide a procedure for motions for temporary modification of residential responsibility. Paragraph (d)(2) was amended, effective3/1/2011, to require a party wishing to cross-examine a declarant to provide pre-hearing notice to the party offering the declaration. Paragraph (d)(2) was amended, effective3/1/2014, to clarify that a party wishing to cross-examine an opposing party does not need to provide pre-hearing notice. Paragraph (d)(3) was amended, effective3/1/2011, to change the time for service and filing of declarations. This rule was amended November 25, 2020, effective 3/1/2021, to delete the term "affidavit" and replace it with "declaration." This amendment was made in response to N.D.C.C. ch. 31- 15, which allows anyone to make an unsworn declaration that has the same effect as a sworn declaration, such as an affidavit. N.D.C.C. § 31-15-05 provides the required form for an unsworn declaration. STATUTES AFFECTED: Considered: N.D.C.C. ch. 31-15, § 14-09-06.6