Family Law

Getting a Temporary Restraining Order When Filing for Divorce

By Joseph Pandolfi, Retired Judge
Find out whether a temporary restraining order could be helpful in your divorce.

There's no question about it--divorce can bring out the worst in people. Usually, divorce-related bad behavior is aimed at the other spouse, but, it can also impact the children. Many times, an embittered spouse's actions during a divorce can cause significant emotional and financial hardship. You can try to minimize the effect of some of this behavior with a temporary restraining order (TRO).

What Is a Temporary Restraining Order?

A TRO is one of those rare legal terms that's actually self-explanatory: It's a court order that temporarily prohibits someone from taking certain actions.

It can be frightening to think about all the things a vindictive or greedy spouse can do in a relatively short period of time. Some of these might include:

  • packing up the children and moving them out of state
  • cleaning out bank accounts
  • canceling insurance policies, such as health and auto
  • changing the beneficiaries on a life insurance policy
  • taking out a loan and using joint assets (such as a house) as collateral, and
  • removing funds from a retirement account.

If you're worried about these types of issues, a TRO may be essential to maintaining the status quo until your divorce is over. It's called a temporary restraining order because it will normally expire at the end of the divorce process. At that point, either the spouses will resolve the various aspects of the divorce by reaching a settlement, or there will be a trial, where the court will decide all outstanding issues. In either scenario, the result will be a written judgment which incorporates the settlement agreement or the court's ruling, and the TRO will no longer be necessary.

Another reason for obtaining a TRO during divorce is to address domestic violence. In these cases, the court will ordinarily order the alleged offending spouse to stay away from the other spouse (and possibly the children) until there's a full hearing, usually within a week or so. At that hearing, the court will decide if an act of domestic violence occurred and may then issue a final restraining order regarding contact between the spouses (and children) and setting out any other conditions it deems appropriate, such as supervised visitation. A domestic violence final restraining order may remain in effect even after the divorce concludes.

Obtaining a Temporary Restraining Order in a Divorce

When spouses seek a TRO—for reasons other than domestic violence—they usually make their request in conjunction with filing the divorce petition (sometimes called the divorce "complaint"). If you're worried about your spouse leaving the area with your children or using all of the marital savings, you will want some protections in place as soon as possible. However, a court can issue a TRO at any time during the divorce, for any number of reasons.

Some states, such as California, have taken a proactive approach to preserving the status quo from the beginning of the divorce process. These states utilize what's known as Automatic Temporary Restraining Orders (ATROs), which become effective automatically and as soon as you file the divorce petition. Usually, the ATROs bind the spouse filing the petition immediately and the other spouse as soon as that spouse receives the divorce papers. These automatic restraining orders are meant to address potential problematic actions, such as those referenced in the preceding section.

Some states may have variations of the ATROs, while others might have no such provisions. If your state doesn't incorporate ATROs in the divorce petition, then your attorney is going to have to specifically ask the court to issue a restraining order that addresses your specific concerns. Again, attorneys should do this when they file the divorce petition. Even if you don't think your spouse will do anything harmful, it's better to be safe than sorry. The divorce process can be an emotional roller coaster, and you never know when something can incite vindictive behavior. It makes sense to stop it before it happens, rather than having to try to remedy the problem after the fact.

Regarding domestic violence cases, all states have procedures in place that allow someone to apply for a TRO at any time of the day. Since domestic violence laws vary from state to state, you'll need to check your particular state's rules and regulations to obtain the necessary information. You can often find this online. In case of an emergency, you should contact your local police department.

Because obtaining temporary restraining orders in a divorce can be quite complicated, be sure to consult a reputable and knowledgeable divorce lawyer for specific information about your case.

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