Friday, September 11, 2009

Divorce and Restraining Orders - an Idea from New York

In Indiana, Protective Orders deal with threats from spouses. Restraining orders deal with property issues. Once upon, there were only restraining orders and they dealt with protecting both people and property.

For the law on restraining orders we need to look at Indiana Rule of Procedure 65 and specifically:

(E) Temporary Restraining Orders - Domestic Relations Cases. Parties wishing protection from domestic or family violence in Domestic Relations cases shall petition the court pursuant to IC 34-26-5. Subject to the provisions set forth in this paragraph, in an action for dissolution of marriage, separation, or child support, the court may issue a Temporary Restraining Order, without hearing or security, if either party files a verified petition alleging an injury would result to the moving party if no immediate order were issued.
(1) Joint Order. If the court finds that an order shall be entered under this paragraph, the court may enjoin both parties from:
(a) transferring, encumbering, concealing, selling or otherwise disposing of any joint property of the parties or asset of the marriage except in the usual course of business or for the necessities of life, without the written consent of the parties or the permission of the court; and/or

(b) removing any child of the parties then residing in the State of Indiana from the State with the intent to deprive the court of jurisdiction over such child without the prior written consent of all parties or the permission of the court.
(2) Separate Order Required. In the event a party seeks to enjoin by a temporary restraining order the non-moving party from abusing, harassing, or disturbing the peace of the petitioning party or any child or step-child of the parties, or exclude the non-moving party from the family dwelling, the dwelling of the non-moving party, or any other place, and the court determines that an order shall be issued, such order shall be addressed to one person. A joint or mutual restraining order shall not be issued. If both parties allege injury, they shall do so by separate petitions. The trial court shall review each petition separately and grant or deny each petition on its individual merits. In the event the trial court finds cause to grant both petitions, it shall do so by separate orders.
(3) Effect of Order. An order entered under this paragraph is automatically effective upon service. Such orders are enforceable by all remedies provided by law including contempt. Once issued, such orders remain in effect until the entry of a decree or final order or until modified or dissolved by the court. 

While once standard operating procedure, I cannot recall any time in the past ten years when I have used a restraining order or seen anyone else using a restraining order.  I do not recall the last time I had a cleint worried that the other spouse would destroy or hide property.

osndiering all that I think the New York law described in New York Divorce and Family Law Blog's Automatic Stays: Protecting the Financial Interests of the Parties in Divorce a good idea:
In the past, many matrimonial actions got off to a particularly acrimonious start because one spouse was fearful that the other would transfer and hide assets, cancel insurance and run up debts as soon as they received notice of the divorce. As a result, one party had to go to the expense of making a motion to obtain an injunction preventing to the other spouse from acting financially irresponsibly.


The summons will now state that an order is in effect and that:
1) Neither part shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney's fees in connection with this action.
(2) Neither party shall transfer, encumber, assign, remove, withdraw or in any way dispose of any tax deferred funds, stocks or other assets held in any individual retirement accounts, 401K accounts, profit sharing plans, Keogh accounts, or any other pension or retirement account, and the parties shall further refrain from applying for or requesting the payment of retirement benefits or annuity payments of any kind, without the consent of the other party in writing, or upon further order of the court.
(3) Neither party shall incur unreasonable debts hereafter, including but not limited to further borrowing against any credit line secured by the family residence, further encumbrancing any assets, or unreasonably using credit cards or cash advances against credit cards, except in the usual course of business or for customary or usual household expenses, or for reasonable attorney's fees in connection with this action.
(4) Neither party shall cause the other party or the children of the marriage to be removed from any existing medical, hospital and dental insurance coverage, and each party shall maintain the existing medical, hospital and dental insurance coverage in full force and effect.
(5) Neither party shall change the beneficiaries of any existing life insurance policies, and each party shall maintain the existing life insurance, automobile insurance, homeowners and renters insurance policies in full force and effect.

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