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Freezing Marital Assets: Getting a Financial Restraining Order When You File for Divorce

Posted by Aaron Thomas | Aug 06, 2019 | 0 Comments

While many couples behave honestly and fairly during a divorce, in other cases, spouses may try to harm the other financially. An angry divorcing spouse may try to hide assets, empty bank accounts, destroy property, or otherwise dissipate the marital estate. If you have good reason to believe your spouse is pulling a fast one with funds, the court may grant you a financial restraining order, which prohibits certain actions by your spouse. This article will explain how to obtain a financial restraining order in your divorce.

Automatic Restraining Orders

Many states and counties have laws requiring judges to issue an automatic restraining order at the beginning of each divorce case. Automatic restraining orders vary from jurisdiction to jurisdiction, but they essentially prohibit either spouse from taking actions outside of the “normal course of business.” Judges consider each couple's financial history when determining what their normal course of business is. For some couples, it may be normal to buy and sell houses each month, while for others, spending more than $2000 per month would be abnormal. Still, there are some actions that courts almost always prohibit:

  • removing a spouse's name from bank accounts, credit cards, property, or policies
  • changing beneficiaries on insurance policies
  • buying, selling, or borrowing against property in a manner inconsistent with the status quo
  • hiding or destroying assets
  • emptying bank accounts

Not every state and county has automatic restraining orders in divorces. If your local courts issue automatic restraining orders, the terms vary depending on your jurisdiction. Consult with a local attorney to see if your jurisdiction issues automatic restraining orders, or if you're unsure whether a particular action would violate the automatic restraining order.

Why You May Want a Financial Restraining Order

If your jurisdiction doesn't have automatic restraining orders, you'll need to decide if you need a restraining order in your case. While many spouses are able to respect each other's property rights and agree how expenses will be paid during a divorce, other people behave poorly during this emotional time. If your spouse has threatened to drain your bank accounts, cut you off from credit cards, or take some other action to harm you financially, you should request a financial restraining order from the court. You may also have concerns if your spouse has a complicated financial portfolio or owns a business where he or she could easily hide assets. Finally, if your spouse has a history of being dishonest regarding finances, you'll probably want a financial restraining order.

Requesting a Financial Restraining Order

You'll want the help of an attorney to file a motion for a financial restraining order, which may also be called a “protective order” depending on your jurisdiction. The court will decide whether to grant a restraining order based on the risk that your spouse has done or will do something improper to harm you financially. For example, if you can prove that your spouse drained your joint bank account out of anger in the past, you'll have a good case for a restraining order in your divorce. You'll likely need to attend a hearing where you'll present your evidence; if the judge agrees to enter a financial restraining order, it will take effect immediately.

Violating a Financial Restraining Order

Once the financial restraining order is in place, any financial dealings outside of the normal course of business are a violation of the court's order. Either spouse can file a motion to hold the other spouse in contempt of court. If a judge catches a spouse violating a financial restraining order, there may be stiff penalties. For example, a judge may order that certain assets be held by the court, take further efforts to freeze accounts, and order the violating spouse to pay the other spouse's attorneys' fees. Courts may consider both the intent and the effect of a spouse's actions when determining whether he or she has violated the restraining order.

If you have additional questions about financial restraining orders in a divorce, contact our office to schedule a consultation.

About the Author

Aaron Thomas

Attorney Aaron Thomas began his legal career in 2002, as an in-house staff attorney for Habitat for Humanity International. He then honed his trial skills from 2004 to 2007 at the Dekalb County Public Defender's office, rising quickly through the ranks, representing hundreds of indigent clients facin...

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