In the world of family law, orders define rights as between spouses and former spouses, as well as between parents of children. Each state has a unique definition of a court order. This article applies only to family law cases in North Carolina.
How Do We Get Court Orders?
The first step in obtaining a court order is filing a lawsuit, which gives the court jurisdiction and the authority to sign a court order. Temporary orders are based on a short trial of only a few hours, on a date shortly after the case is filed. These hearings can be rushed and chaotic but they’re only meant to give parties some structure until the full trial takes place. Full trials give them the opportunity for the judge to hear testimony of the parties and their witnesses, and offer more thorough exhibits.
What Are the Mechanics?
After a trial, judges sometimes write their own orders. This is more likely to happen with temporary orders, such as temporary child custody. Other times, judges assign the task of writing an order to one of the attorneys. After a judge signs a written order and the clerk of court files it, it is an official order. Filing means the signed order goes to the clerk of court’s office where the clerk stamps it. The special stamp shows the date and time that the order was placed in the court file, which includes all the paperwork filed in the case.
What’s Included in a NC Court Order?
The first part of the order is called Findings of Fact, where the judge makes a legal ruling on the disputed or contested facts, such as whether a spouse committed adultery. Next, orders typically have conclusions of Law. This is the “legaleze” part of the order, where the judge says (i.e., concludes) what the law requires based on those particular facts. The actual Order is the part most people think of when they think of an order. For example, it awards custody and includes visitation schedule, sets an amount of child support or alimony, or says who keeps marital property.
When a lawsuit has been filed and the parties decide to settle their case without a trial, the judge will sign what is called a Consent Order. That means the parties give the judge their consent to sign and enter the order. The reality of court can cause people to reconsider settling their cases just before a trial starts. Referred to as settling at the courthouse steps, it isn’t unusual for the consent order to be hand written with pen and paper right then and there. The handwritten order is called a Memorandum of Order. It can be typed and improved upon after the hand-written order is entered, but the handwritten order is immediately valid and enforceable once it is sign by the parties and the judge. If the parties aren’t settling at the courthouse steps, the judge might schedule a date for the parties to appear in court for 5 or 10 minutes to officially give him or her permission to sign the order without a trial. These orders are typed and finalized when signed.
Either way, the judges might ask the parties if they’ve read the order, if they understand what it requires each party to do, if they have discussed it with their attorneys, and if they are entering this order of their own free will. Another question judges ask is whether each party understands that the order is enforceable by the contempt powers of the court (as all orders are) which can include incarceration. After a few brief questions, the judge reviews and signs the order, and each party walks away with a copy of the official order.