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How to File a Temporary Restraining Order

Posted on July 6, 2015 in Civil Law

In divorce cases, the status of minor children is usually the most sensitive aspect between couples.  There also may be a significant amount of property and financial assets at stake for distribution. Filing a divorce action means that for the statuses of minor children and marital assets need to be determined as of a certain date and the marriage needs to effectively be put on hold so that the legal system can more effectively determine the proper disposition of these issues.

In the case of property and financial assets, locations and values need to be verified and “movement” of these items can impede this valuation. Too much “post-separation movement” while the divorce action is being arbitrated can be potentially confusing for both sides and can be costly especially when attorneys, accountants, and other outside consultants are trying to assess the value of the marital “estate”.  The legal instrument that carries out this cessation of marital activity is the Temporary Restraining Order.

How to file a temporary restraining order? In some states, like California, the Temporary Restraining Order Provision is already summarized at the back of the Petition for Dissolution. In other words, the legal statutes of certain states dictate that certain activities involving financial assets and minor children should be stopped or abated UPON agreement by the couple that a divorce should actually be consummated.

In this case, the Temporary Restraining Order becomes an Automatic Temporary Restraining Order. An Automatic Temporary Restraining Order becomes immediately effective when the petitioner files the divorce action, and upon the service of a summons.  The Temporary Restraining Order remains in effect until the final judgment for dissolution is signed by the court.

In other states that do not provide for Automatic Temporary Restraining Orders, a separate filing needs to be made in conjunction with the filing for the petition for divorce. In some cases, parties often have incur the additional expense of filing for an ex parte or emergency Temporary Restraining Order especially where there is some fear that a party or parties will be damaged by the actions of the other party during the hearing process.

The important thing to remember is that whether a Temporary Restraining Order is automatic or not, it can still be subject to changes after the initial Temporary Restraining Order has been agreed upon and approved by the court.

The following prohibitions and restrictions can be included in a Temporary Restraining Order:

Financial Assets

  • Loans may not be taken out with community property as security or collateral. In other words, pledging this property as security for debt by either party is not allowed even if the title or possession of the property is not transferred to the prospective lender,
  • Joint bank and investment accounts may not be closed and the amounts transferred to the separate account of one of the parties,
  • Items and cash cannot be removed from a safe deposit box or safe and transferred under the control of one of the parties,

–   Assets cannot be destroyed and they cannot be hidden from the   spouse, and

–   Other parties may not be added as co-owners of existing property.

Financial instruments

  • The cash from a life insurance policy may not be taken out and the proceeds deposited into a separate account,
  • Beneficiaries from life insurance policies cannot be changed,
  • The spouse cannot be removed from health insurance policies even if they are not living together,
  • The spouse cannot be removed from automobile insurance policies if the couple is not living together, and
  • Beneficiaries named in retirement accounts cannot be changed.

Status of minor children

  • Children cannot be removed from health, dental and vision insurance policies even if they are not living with the policyholder, and
  • The movement of children to other states or countries may be restricted.

Some “movement” of assets may be allowed while waiting for the final decree of divorce.  These include:

  • Payment of attorneys retained for the divorce action,
  • Spending marital assets in, “the usual course of business”, subject to court determination as to the validity of such spending, and
  • Certain changes to wills and similar documents.

It should be noted that the divorce courts in the United States have wide discretion in which items can be included in a Temporary Restraining Order. The details involved can be confusing and perplexing especially in cases where many items are subject to the Temporary Restraining Order. Always keep in mind that Temporary Restraining Orders are legal protections for the protection of both parties, and violating the terms by either can lead to serious legal consequences therefore it is always advisable to seek an attorney’s advice in this area.

How to File a Temporary Restraining Order

Steps to Follow on How to File a Temporary Restraining Order

Each state in the United States has different rules, deadlines, and documentation for filing a Temporary Restraining Order.  But there are some generalized steps at the minimum that need to be done even in states where an automatic Temporary Restraining Order applies at the beginning of the divorce filing process.  These steps assume that a qualified attorney in family law will be available in more complex cases.

  1. Before filing for a Temporary Restraining Order, assemble the necessary supporting documents such as, wills, agreements, worksheets, titles to real and personal property, and any evidence supporting ownership and access to, safe deposit boxes, investment accounts, bank accounts, insurance policies. If minor children are involved, the Temporary Restraining Order should also include which actions cannot be carried out by each party, especially regarding movement of children across state lines, and amendment of passports, and other government documents.
  2. Determine what items that you want to be included in the Temporary Restraining Order.
  3. Execute a formal restraining order. Each state will have a different form and documentation requirements.  Generally, the Temporary Restraining Order will be filed together with the divorce complaint.  The order will contain all the transactions and actions that CANNOT be made before the final divorce decree is granted.  Note that the order can be changed subsequent to initial filing with consent by both parties.
  4. Have an officer of the court serve the Temporary Restraining Order if separate from the original divorce action. The officer will usually be a member of the law enforcement authorities, such as a sheriff or a marshal.  Keep a copy of the notice of service for future reference.
  5. In some states, a Temporary Restraining Order is in force for a limited time. Any extension will need to be filed with a separate document. Some jurisdictions will require a formal hearing to enforce an extension of a Temporary Restraining Order.
  6. When one of the parties would like to contest a Temporary Restraining Order, they must file a formal request with the court. A hearing will then take place to hear both sides of the divorce action.
  7. After the Temporary Restraining Order is served and a court hearing is mandated, all supporting documentation should be brought to the court and presented as exhibits.

 

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