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