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Temporary Restraining Order In Divorce Cases Under Chinese Law

One of my client inquired as below:

Wife obtained a restraining order against the Husband. Husband did not appear for the 10 -day hearing, so the 209A abuse prevention order was automatically extended for a year. Apparently, the Husband filed a Motion to Vacate the restraining order. Wife was never served with a copy of the Motion to vacate, nor did she receive a copy in the mail. The only reason she even found out about the Motion to Vacate is because I represent her in her divorce case against Husband and it happened to be mentioned in pleadings filed in the divorce case. However, the date mentioned in the court pleadings is wrong and even if Wife were to rely on the information contained in the pleadings, she would have showed up on a wrong date. The restraining order and the divorce are two separate matters filed in different courts. The Motion to Vacate is scheduled to be heard this coming Thursday. Would you advice Wife not to come for the hearing as she did not received a proper notice of it? My response:

I would advise her to go, however, I would also have her go to the court and drop off a letter (today if possible) stating that she did not have notice of the hearing and that she will be requesting more time on the day of the hearing so that she can properly prepare for it.  Include how you found out about the hearing in the letter.  Alternatively, if you will be representing her, you could do this as well.

I would also have her get the soon to be ex-husband's proof of service from the file so that you can see when he supposedly sent it.  This may show that it was sent to the wrong address, either deliberately or accidentally.  However, in any event, she did not have proper notice of the hearing and she wishes for at least a week to properly prepare for the hearing on the motion to vacate the order.  The victim's advocate should be willing to help her.

As an experience China lawyer and the author of this blog, I often received questions from various countries. I am trying to answer them promptly and hopefully help international clients to resolve their issues.

 
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I am a licensed China lawyer. Most clients are foreign nationals and companies. China Lawyer Blog have associates in Beijing, Shanghai, Tianjin, Guangzhou, Suzhou, Nanjing, Qingdao, Fuzhou, Hainan, Hefei, Wuhan, Xian, Changsha, Xiamen and Hangzhou. Learn More

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China Lawyer BLog AuthorPeter Zhu, an experienced China attorney licensed to practice law for more than ten years, the author of this China Lawyer blog, welcomes any enquiry or consultation related to Chinese law.