Saturday, February 9, 2013

Divorce Restraining Orders

Mutual and Temporary Restraining Orders

In contested divorces, court restraining orders are sometimes needed to protect spouses from each other’s actions. Such orders are Ex Parte in nature (sought by one of the spouses and granted without notice or an initial hearing allowing the other spouse to be heard). A spouse who believes that a restraining order is inappropriate or incorrect may file a motion for relief from the order and request a hearing with the court. 
The most common restraining order issued in a contested divorce is a mutual restraining order. Below is an example of such an order excerpted from the Warren County, Ohio Domestic Relations Court Local Rules and Forms (See Warren County DR Form 7):
Mutual Restraining Order

IT IS ORDERED PURSUANT TO LOCAL RULE, EFFECTIVE ON THE DATE A COMPLAINT IS FILED, THAT EACH SPOUSE IS ENJOINED FROM COMMITTING ANY OF THE FOLLOWING ACTS:

1.Threatening, abusing, stalking, annoying, or interfering with the other party or the parties’child(ren);

2. Incurring credit in the name of the other party or in the parties’ joint names, except for necessary food, housing, utilities, medical care and necessary transportation, or allowing a lien or loan to be placed against their real or personal property;

3. Selling, disposing of, or dissipating any of their real or personal property, including money (other than regular income), of either party, or removing household goods and furniture from the marital residence;

4. Changing or failing to renew the present health, life, home, automobile, or other insurance coverage; removing the other party as a beneficiary on any life insurance or retirement benefits without further order of this Court;

5. Removing the minor children of the parties from Ohio except for holidays or vacations (not to exceed ten days);

6. Claiming the children as dependents on any income tax return without prior Court order.

Nothing in the above restraining order prevents a spouse from using her or his property to pay necessary and reasonable attorney fees, litigation and court costs.

When your spouse violates the above order you can have your attorney initiate proceedings to have your spouse held in contempt of court. The court can impose a variety of sanctions against a spouse who is held in contempt of court.

Temporary Restraining Order (TRO)

When a spouse submits a motion supported by a sworn affidavit stating to a court that the other spouse is about to dispose of or encumber “marital property” (property subject to equitable division by the court), the court may grant a temporary restraining order (TRO) to prevent that action. As stated above, temporary restraining orders are Ex Parte in nature and are issued without notice or an initial hearing allowing the other spouse to be heard. Also, as stated above, a spouse who believes that a restraining order is inappropriate or incorrect may file a motion for relief from the order. The order will remain in effect until a hearing on a spouse’s motion for relief is held and the court modifies or vacates the order.  

Temporary restraining orders can freeze bank accounts, brokerage accounts or any type of asset subject to a court’s jurisdiction. As stated above, when your spouse violates the above order you can have your attorney initiate proceedings to have your spouse held in contempt of court. The court can impose a variety of sanctions against a spouse who is held in contempt of court.

TROs can render a spouse unable to access accounts normally used for necessary living expenses and motions for modification and/or relief from such orders are frequently filed.

TROs can be issued for both pre and post decree matters.

See also:

http://ohiodivorceguide.blogspot.com/2010/12/domestic-violence-and-divorce.html
The above information is not offered as, and does not constitute, legal advice. The information presumes you are not currently represented by an attorney who knows your specific circumstances.

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