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What is the Automatic Restraining Order?

When a Divorce is filed, an automatic restraining order on assets immediately applies. This prohibits you, and your spouse, from encumbering, selling or transferring certain marital assets during the pendency of the divorce proceedings. Notice of this automatic restraining order is given to the parties with their initial pleadings and the parties are required to comply with its terms throughout the pendency of the divorce. So, what does this mean to you?

The automatic restraining order is meant to protect the assets of the parties until there is an agreement for their distribution or an order for their distribution by the Court. Under the terms of the automatic restraining order, neither party is permitted to sell, encumber (by lien or mortgage, for example), or transfer any asset while the divorce is pending. The Court applies this automatic restraining order so that neither party can use assets to their advantage, particularly where an asset may be held in one party’s name (ie a 401K account). The automatic restraining order ensures that the assets are left for distribution by the Court, or the agreement of the parties, without worry.

So, what if you need access to a particular asset during the pendency of the divorce? Perhaps you need to take funds from the savings account for a security deposit. You may ask your spouse for relief from the automatic restraining order and an agreement to your using a particular asset. Often the parties will agree that a savings account may be shared equally at some point during the proceedings so that each party has some funds at his/her disposal. If your spouse does not agree, you may ask the Court for partial relief from the automatic restraining order to use a particular asset. Whether or not this will be allowed is very fact dependant.

The safest way to comply with the automatic restraining order is to consult with your attorney for each transaction in detail. Your attorney can help you evaluate the situation, determine whether that particular transaction would violate the automatic restraining order and advise whether you need agreement from your spouse or permission from the court.

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