RESTRAINING AND PROTECTIVE ORDERS

Temporary Restraining Orders

It is common to ask for a temporary restraining order (“TRO”) when filing a petition for divorce.  A TRO is only good for 14 days and then it must be renewed by the court.  The court will generally sign a mutual TRO against both parties unless the petitioner is asking that the respondent be evicted from their residence.  If so, then the application for the TRO must have a sworn affidavit setting out the facts as to why the respondent should be evicted (like family violence).  Within a few weeks from filing the divorce petition and TRO the court will set a hearing for Temporary Orders which will make the injunctions in the TRO permanent until the divorce is over.  A TRO does not go into effect and does not restrain the other person until a copy is actually delivered to them by a process server. 

What’s In a TRO? 

In a divorce proceeding, the TRO usually enjoins both parties from:

 

1. Communicating with the other party in person, by telephone, or in writing in vulgar, profane, obscene, or indecent language or in a coarse or offensive manner. 

2. Threatening the other party in person, by telephone, or in writing to take unlawful action against any person. 

3. Placing one or more telephone calls, anonymously, at any unreasonable hour, in an offensive and repetitious manner, or without a legitimate purpose of communication. 

4. Causing bodily injury to the other party. 

5. Threatening the other party with imminent bodily injury. 

6. Destroying, removing, concealing, encumbering, transferring, or otherwise harming or reducing the value of the property of one or both of the parties. 

7. Falsifying any writing or record relating to the property of either party. 

8. Misrepresenting or refusing to disclose to the other party or to the Court, on proper request, the existence, amount, or location of any property of one or both of the parties. 

9. Damaging or destroying the tangible property of one or both of the parties, including any document that represents or embodies anything of value. 

10. Tampering with the tangible property of one or both of the parties, including any document that represents or embodies anything of value, and causing pecuniary loss to the other party. 

11. Selling, transferring, assigning, mortgaging, encumbering, or in any other manner alienating any of the property of Petitioner or Respondent, whether personalty or realty, and whether separate or community, except as specifically authorized by this order. 

12. Incurring any indebtedness, other than legal expenses in connection with this suit, except as specifically authorized by this order. 

13. Making withdrawals from any checking or savings account in any financial institution for any purpose, except as specifically authorized by this order. 

14. Spending any sum of cash in each party's possession or subject to each party's control for any purpose, except as specifically authorized by this order. 

15. Withdrawing or borrowing in any manner for any purpose from any retirement, profit-sharing, pension, death, or other employee benefit plan or employee savings plan or from any individual retirement account or Keogh account, except as specifically authorized by this order. 

16. Entering any safe-deposit box in the name of or subject to the control of Petitioner or Respondent, whether individually or jointly with others. 

17. Withdrawing or borrowing in any manner all or any part of the cash surrender value of life insurance policies on the life of Petitioner or Respondent, except as specifically authorized by this order. 

18. Changing or in any manner altering the beneficiary designation on any life insurance on the life of Petitioner or Respondent. 

19. Canceling, altering, failing to renew or pay premiums, or in any manner affecting the present level of coverage of any life, casualty, automobile, or health insurance policies insuring the parties' property or persons. 

20. Opening or diverting mail addressed to the other party. 

21. Signing or endorsing the other party's name on any negotiable instrument, check, or draft, such as tax refunds, insurance payments, and dividends, or attempting to negotiate any negotiable instrument payable to the other party without the personal signature of the other party. 

22. Taking any action to terminate or limit credit or charge cards in the name of the other party. 

23. Discontinuing or reducing the withholding for federal income taxes on each party's wages or salary while this case is pending. 

24. Destroying, disposing of, or altering any financial records of the parties, including but not limited to records from financial institutions (including canceled checks and deposit slips), all records of credit purchases or cash advances, tax returns, and financial statements. 

25. Destroying, disposing of, or altering any e-mail or other electronic data relevant to the subject matters of this case, whether stored on a hard drive or on a diskette or other electronic storage device. 

26. Terminating or in any manner affecting the service of water, electricity, gas, telephone, cable television, or other contractual services, such as security, pest control, landscaping, or yard maintenance, or in any manner attempting to withdraw any deposits for service in connection with those services. 

27. Excluding Petitioner from the use and enjoyment of the residence  

28. Entering, operating, or exercising control over the motor vehicle in the possession of Petitioner. 

29. Entering, operating, or exercising control over the motor vehicle in the possession of Respondent. 

What happens if a person violates a TRO? 

If a person violates one or more provisions of a temporary restraining order, then the other party must go back to court and ask the judge to hold them in contempt and punish them for violating the order. 

Protective Orders 

A person can make an application for a protective order asking the court to enter orders protecting them from another person.  The application must have an affidavit attached swearing to the facts.  A typical protective order involves physical abuse or threats of violence.  The court will set a hearing and the other person must be given notice of the hearing date by delivery to him or her by a process server.  At the hearing the court will hear evidence regarding the family violence and either grant or deny the protective order.   

What happens if a person violates a protective order? 

Once a protective order is entered by the court, law enforcement agencies are notified.  If a person violates the protective order and the peace officers are called, the violator will probably go straight to jail.  Protective orders are stronger than TRO’s and the penalties for violating them are greater.  A peace officer will not enforce a TRO but they will enforce a protective order.