You could consider acquiring a restraining order before your divorce if your partner continually acts in a manner that makes the divorce proceedings difficult. Many people assume that restraining orders are only for domestic violence or assault situations, but this is not the case. Several situations call for a temporary restraining order to help the divorce proceedings run smoothly. A restraining order will help prevent harm to either spouse, the children, and the property. Below are some of the situations that could prompt a temporary restraining order before a divorce:
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If Your Spouse Threatens To Take The Children
You can file a restraining order if you fear that your spouse will take your children from home or even from the state of California. Filing a restraining order prevents them from taking that action.
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Sale Of Major Assets
A divorce can turn nasty, and you could fear that your spouse will sell your significant assets before the conclusion of the divorce. Some of the critical shared assets include the family home and vehicles. Filing a restraining order will prevent your spouse from doing this until the conclusion of your divorce.
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Clearing Your Bank Accounts
Perhaps you have shared bank accounts with your spouse. In the face of a divorce, your spouse promises to remove money or assets from your shared account. Doing this could lead to your complete financial dependency. A restraining order would come in handy to prevent your spouse from taking this action.
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Borrowing Against Joint Assets
A restraining order will also hinder the other spouse from taking a loan and using the shared assets as collateral. It is common for some spouses to borrow money and secure it with assets like vehicle log books and real estate.
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Withdrawing Money From Retirement Accounts
Your spouse could secretly withdraw money from your retirement account, and this money would be difficult to replace. If you suspect that your spouse plans to do this, filing a temporary restraining order against them will prevent your spouse from taking such action.
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Making Insurance Changes
In the face of divorce, some spouses could try to make insurance changes, including changing the beneficiaries of a life insurance policy. A temporary restraining order prevents your spouse from canceling your auto insurance or homeowner's insurance until the completion of the divorce.
A restraining order is a perfect idea if you fear that your spouse will take any of the actions outlined above. A restraining order protects both spouses while the divorce proceedings go on. Neither of the spouses can make any significant changes outlined above until the divorce is concluded.
Automatic Temporary Restraining Order
When one spouse files for divorce, an automatic temporary restraining order, commonly referred to as ATRO, takes effect. An ATRO regulates these actions:
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None of the spouses can remove the children out of state. However, if some children are already staying out of state when filing for a divorce, there is no need to bring them back to California.
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An ATRO also prevents any attempts by either spouse to take advantage of shared marital property. Such advantages could include hiding, selling, or transferring the property.
Neither of the spouses could use the marital property as collateral to a loan or transfer money from a marital account to an individual bank account. The order also prohibits either spouse from transferring items from a safe deposit box.
Upon filing for divorce, a spouse must inform their partner within five days if they intend to make a large purchase using shared funds. An ATRO ensures that none of the spouses acts on behalf of the other spouse during the divorce process. Sometimes, you could feel that an ATRO restricts necessary actions. You could also fear that your spouse could take action to harm you. In this case, you can file a motion to alter or revoke the ATRO.
Lifting Of The Automatic Temporary Restraining Order
After the conclusion of your divorce, the judge lifts the ATRO. However, the court could issue a final restraining order against the offending spouse if the spouse demonstrates particular behavior. This behavior includes domestic violence and other forms of abuse like emotional, verbal, or financial abuse. You should file a divorce as soon as possible if you suspect that your spouse is taking advantage or misusing your financial assets because an ATRO will not begin until the divorce filing date.
Exceptions could exist whereby you can extend the restraining order to the period before filing for a divorce. You should ensure that you speak to an experienced attorney to advise you regarding temporary and final restraining orders. For the spouse who files for a divorce, the automatic temporary restraining order takes effect from the date of filing. For the non-filing spouse, the ATRO takes effect from the service date (when the spouse gets notice of the divorce). The automatic temporary restraining order remains in place until any of the following:
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Issuance of a court order modifying one or more of the restraining orders
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Dismissal of the divorce proceedings
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When the court issues a judgment finalizing the divorce
What Either Spouses Can Do While The Divorce Is Pending
A temporary restraining order aims to prevent each spouse from taking drastic actions during the divorce process that could impact the other spouse’s ability to enforce their rights. However, a restraining order does not prevent either of the spouses from living their everyday lives. Even if a restraining order prohibits major unilateral family-related and financial decisions, it still allows reasonable amounts of flexibility and discretion. A temporary restraining order will not prevent any of the spouses from doing the following:
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Taking the children for a holiday or vacation, provided they do this within California.
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Buying or selling items provided these actions are within an ordinary course. The restraining order does not prevent either spouse from purchasing necessities.
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A restraining order does not prevent either spouse from creating a will, modifying, or revoking it.
Even if making major decisions like selling the family home will violate the restraining order, both spouses can formally agree (stipulate) to do things that would otherwise violate a restraining order. In addition, either of the spouses can seek a court order to modify standard restrictions. If you have any questions regarding what you can and cannot do during a divorce, it is advisable to contact an experienced attorney for counsel.
When One Party Violates The Terms Of Restraining Order
Divorce is often a stressful experience between spouses. Even the seemingly amicable cases involve the intense stress of dividing marital estates, assets, and finances.
A divorce case could push the involved parties to the breaking point. A divorce case can quickly spiral into hostile territory as each party demands. One way of coping with these hassles is through a temporary restraining order. This order establishes a code of conduct for divorces. It limits the spouses' ability to control some financial aspects of the marital estate. Even if restraining orders are temporary, they freeze or control financial assets or certain situations during the divorce proceedings.
A temporary restraining order is a mutual court order, meaning that both parties will be subject to similar prohibitions. As long as both the involved parties agree, it is possible to amend the terms of a restraining order. Courts do not inform banks and other financial institutions about the divorce upon issuing a temporary restraining order. The divorcees must notify the financial institutions. At times, they leave leeway for the violation of the restraining orders.
The violation of a temporary restraining order is a crime. The court will hold any spouse who violates the order in contempt. You should report a violation of the restraining order as soon as possible. The violation of a restraining order will lead to criminal charges, affecting the divorce proceedings. The divorce proceedings will delay, mainly if a spouse destroys or hides assets to conceal their net worth.
The violation of a restraining order is more than petty revenge. It is similar to fraud. Maintaining a status quo is essential for a fair divorce case to continue. In addition to hurting the affected parties, financial retaliation also risks the fairness of the divorce case. A temporary restraining order ensures that financial assets remain accountable as they were at the start of the divorce case. If one spouse files a case about a violation of a temporary restraining order by the other party, it will automatically stop the divorce proceedings until the court settles the criminal case. The criminal lawsuit must be complete before continuing the divorce because it will influence other aspects of the divorce case.
Difference Between An ATRO And Standard Restraining Order
Standard restraining orders, also called protective orders, require the filing party to prove that the other party has committed some form of wrongdoing. A normal protective order is unilateral, meaning that it protects the filer and restrains the other party. A standard protective order can restrict the restrained person from coming near or contacting the protected person. However, an automatic temporary restraining order (ATRO) is much less restrictive.
An ATRO is also mutual; thus, both parties face the same restrictions. None of the parties have to prove the wrongdoing of the other. A family law act like divorce or separation is enough to trigger an ATRO. Even when a temporary restraining order takes effect during divorce, both parties can contact one another and even live in the same place. All that the restraining order does is restrict either party's ability to change the financial status quo of the partnership.
A Temporary Restraining Order To Remove A Spouse From Family Home Before Divorce
You can file a restraining order to get your spouse from your shared home if you file for divorce and fear for your safety. The appropriate restraining order the court issues will depend on the threat involved and the evidence you provide. Domestic violence is a common issue for many Californians. If you have been a victim of domestic violence or you fear that your spouse could turn violent during divorce proceedings, you can seek protection from the state. You can petition the court for a protective order during the divorce proceedings.
This restraining order can reduce the possibility of domestic violence. The court can issue you with a kick-out order.
Understanding A Kick Out Order
A kick-out order is a legal way of kicking someone out of their home for a particular period. A kick-out restraining order protects against threatened or established domestic violence problems. If you are a victim of domestic violence and want to divorce the abuser formally, a kick-out order would come in handy.
If a victim of domestic violence lives together with the abuser, it can be difficult to gather the needed strength to tell the abuser they want a divorce since this could trigger further violence. However, once the abuser is no longer in the family home, the victim can petition for a divorce and be safe and free from any form of retribution during the divorce process.
Requesting For A Kick Out Order
A kick-out order is a restraining order that can be given on an emergency basis. For a victim to obtain this order from the court, they must establish the following three things:
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It should be evident that the victim has the right to possess the home shared with the abuser
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The person that the victim is attempting to kick out from home must have assaulted or threatened the victim or their children.
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It should also be evident that the victim or their children could suffer emotional or physical harm if the abuser is not expelled from the home.
The court will use its discretion to determine whether the victim's petition meets the elements outlined above. The most challenging aspect of proof is that the victim has the right to possess the shared home. A victim can prove this by showing that their name is on the mortgage or lease document, proving that they pay the rent for the home, or that they have an extended physical presence in the home.
It is common for the husband’s or the wife’s name to be outlined on the lease document. However, at times, this could not be the case. If the victim’s name is not on the mortgage or the lease document, the court could still use other methods to establish whether the victim has a right to the shared property.
Different counties in California could require varying evidence to determine whether a kick-out order is crucial. Some counties need the victim to prove that there is a risk of immediate or serious harm, while others leave this decision to the judges to decide. An unnecessary or a false request for this order could do more damage than good. Therefore, it is crucial to ensure that you provide evidence of impending domestic violence or harm.
If the court grants the kick-out order, the abusive spouse must leave the marital home before the commencement or conclusion of the divorce. This temporary restraining order will abolish any abusive partner’s legal rights on the residence. The order will require the abusive partner to leave home even if they are named the leaseholder or the tenant. The person named in the order will have to stay away from the family home for a specified period until the resolution of the divorce.
When The Court does not Grant The Restraining Order
The court does not always grant a kick-out order. The court could deny the restraining order if the victim does not have ample evidence to establish their case. If the court fails to grant a kick-out order, the victim can request a removal order. The court could grant a removal order if the victim, their children, or any other person in the home could suffer harm or damage if the abuser remains in the home.
The only distinction between a removal order and a kick-out order is the urgency. The court can grant a kick-out order without listening to or meeting the abuser. However, the abuser first presents their side of the story for a removal order before the court approves or denies the order. Therefore, the court grants kick-out orders during an emergency, but removal orders are not granted during an emergency.
Find A San Diego Divorce Attorney Near Me
If you are filing for a divorce and you suspect that your spouse could misappropriate your shared financial assets and property, you can file a restraining order to prevent such action. You can request a kick-out restraining order if you feel that your spouse could harm you or your children if you file for divorce. The type of restraining order that the court will issue will vary depending on the evidence you provide and the imminent threat. A good way of obtaining the protection you require is by hiring an experienced divorce attorney. For reliable guidance and legal representation, contact the San Diego Divorce Attorney. Call us at 858-529-5150 and speak to one of our attorneys.
