If your spouse continually acts in ways that make your divorce difficult, you may want to consider getting a temporary restraining order. When is it a good idea to get a temporary restraining order? What happens after the divorce goes through?
What Circumstances Prompt a Temporary Restraining Order?
Contrary to popular belief, restraining orders are not only for cases involving domestic assault. A number of situations may call for a restraining order so that the divorce process can run smoothly without harm to either spouse, children, or property.
- Removal of children. If you fear your spouse will remove your children from your home or the state of California, a temporary restraining order can prevent them from taking this action.
- Clearing bank accounts. When divorce is imminent, some individuals threaten to remove assets from shared bank accounts, resulting in the complete financial dependency of the other spouse.
- Sales of major assets. If you are concerned your spouse may sell shared assets, such as a home or a car, a temporary restraining order will prevent this action until the time of the divorce.
- Borrowing on joint assets. Similar to the above concern, a temporary restraining order can prevent a spouse from using shared assets such as real estate as collateral for a loan.
- Insurance changes. A temporary restraining order can prevent a spouse from canceling homeowners and auto insurance policies as well as prevent him or her from changing the beneficiaries of any life insurance policies until after the divorce.
- Withdrawing from retirement accounts. Some spouses preemptively withdraw funds from a retirement account, which can be difficult to replace. A temporary restraining order prevents this action.
If you fear your spouse will take any of these actions, a temporary restraining order is a good idea. Neither of you will be able to make the major changes listed above, protecting you both while the divorce proceedings go on.
How Do I Get a Temporary Restraining Order?
In California, an automatic temporary restraining order (ATRO) goes into place once one party files for divorce. The ATRO covers the following actions.
- Removing children from the state, though you need not return children already living out of state
- Attempts to hold an advantage over marital property, including transferring, hiding or selling property. In other words, neither of you may use community property as collateral for a loan, transfer money to a personal bank account from the marital account, or transfer items from a safe deposit box.
- Changes to insurance or retirement accounts. Neither spouse may make any changes to any insurance accounts, including changing beneficiaries or removing vehicles or names from health or auto insurance, or withdraw retirement funds.
- Neither may make changes to trusts, though you may make changes to personal wills.
In addition, if either spouse wishes to make a large purchase, he or she must inform the other within five days. The purpose of the ATRO is that neither may act on behalf of the other during the divorce proceedings. If the ATRO restricts actions you feel are necessary, or if you fear your spouse may take other action that could harm you, you may file a motion to revoke or alter the ATRO.
After the Divorce
After your divorce is final, the judge will lift the ATRO. However, if you have proven domestic violence or other forms of abuse such as verbal, emotional, or financial abuse during the divorce proceedings, the court may issue a final restraining order against the offending spouse.
If you believe your spouse may be taking advantage of your financial assets, file for divorce as soon as possible, since an ATRO does not begin until the date of filing. Exceptions may apply and extend to the time before the filing, so speak with a divorce attorney regarding any temporary or final restraining orders.
