Temporary Orders and Temporary Restraining Orders

Restraining Orders

Divorces are tricky. Those who file for a simple, uncontested divorce may find themselves arguing over unexpected items while others walk into the courtroom viciously attacking each other over everything, refusing to budge over the tiniest issue and drawing the divorce out for years. However, sometimes there are issues involved that cannot wait that long. In these instances, the Court may be called on to issue Temporary Orders.

The Court uses Temporary Orders, or TO's, to handle immediate disputes so the larger proceedings will not break down. Not all divorces require TOs, while some may have one or two issues arise that need some help. If there are children involved, these matters might include temporary conservatorship, child support and visitation, provision for health care, and anything providing for his or her general safety and well-being. Otherwise, both parties may also need guidelines for such things as an injunction from destroying property, running up credit card debt, and who has the exclusive right to use the marital property during the divorce.

To ask for a TO, one party must file a Motion for Temporary Orders. The Court will then have a Temporary Orders hearing, listen to both sides, then render a decision. Whatever he or she decides will be binding for both parties until either the divorce is final or it is modified by the Court, so it is a good idea to consult with a family law attorney before taking this step.

However, if the party filing for TO's is afraid the other party will do something harmful before the date of that hearing, he or she may ask the Court to sign an emergency court order, or Temporary Restraining Order. Many people confuse Temporary Restraining Order with Protective Orders. Protective Orders are used to provide immediate protection from physical violence or sexual assault while Temporary Restraining Orders are meant to preserve property and protect the filing party, especially children, involved in civil or family court.

A Temporary Restraining Order, or TRO, prohibits a party from specific actions or behaviors. Such acts include running up marital debt, making major withdrawals from a bank account, selling or altering property, intentionally damaging, destroying, or tampering with the other party's property, altering life insurance beneficiaries, interfering with the other party's mail or business affairs, harassing or stalking him or her, withdrawing a child daycare or school, or removing the child from the state.

A TRO may be brought “ex parte” which means the other party does not have to be told the Order is being filed. If the filing party wants to exclude the other party from having access to the child altogether, he or she must provide an affidavit and give reasons why the filing party or the child will suffer “irreparable harm” if the TRO is not granted.

Although the other party does not have to be told the Order is being filed, the Order does not take effect until he or she has been officially served, either by a personal service or other approved means. It will last fourteen days unless the Court extends it or modifies it, so a hearing must be held within 14 days. At the hearing, the judge will determine if any temporary injunctions or other temporary orders are necessary.

Temporary Orders are used to maintain civility and order in the Court during a time of anger and chaos while Temporary Restraining Orders are used to restrict those who need stronger constraint. Together, they maintain the rules and guidelines necessary to survive a difficult divorce.