Are Restraining Orders Standard for a Divorce?
By Heather Frances J.D.
A restraining order prevents a person from taking a certain action, and two types of restraining orders are common in the context of divorce: automatic restraining orders and domestic violence restraining orders. Though laws regarding this issue differ between states, an automatic restraining order typically keeps spouses from actions like selling property or moving the children, whereas a domestic violence restraining order keeps spouses away from each other.
Automatic Restraining Order
In some states, spouses are automatically restrained from taking specified actions after they file for divorce; these automatic orders are effective immediately when a spouse files the divorce papers and serves them on the other spouse. Such orders are standard in states that have them, though not all states do. An automatic restraining order applies equally to both spouses, regardless of which spouse filed the divorce paperwork.
The contents of an automatic restraining order vary between states, and the spouses’ conduct is governed by the specific language in the order. Orders may contain terms that address whether spouses can sell property, put liens against property, change life insurance beneficiaries or withdraw money from bank accounts. Some orders address procedures for taking a child out of state before the divorce is final, and one spouse may have to get written permission from the other to leave the state with the couple’s children. These orders generally expire once a couple’s divorce is final.
Changing an Automatic Restraining Order
An automatic restraining order may not fit every situation. Some states, like California and Massachusetts, have automatic restraining orders, but permit the court to modify them at any time before the divorce is final. For example, if an automatic restraining order prohibits a spouse from leaving the state with the children without written permission from the other spouse, the court could modify that order to allow the child to leave the state in a situation where one spouse could not be located to give written approval.
Domestic Violence Restraining Order
Typically, domestic violence restraining orders are separate from the divorce proceedings, and a spouse or partner can get a domestic violence restraining order whether or not she filed for divorce. Such orders might be necessary when one spouse has physically harmed the other spouse or child or has threatened to harm them. State laws vary, but courts often customize domestic violence restraining orders to meet each situation, including such terms as a distance the restrained spouse must maintain from the protected spouse.
- Dishon & Block Divorce Attorneys: What Are Automatic Temporary Restraining Orders?
- Massachusetts Trial Court Law Libraries: Massachusetts Supplemental Probate and Family Court Rule 411
- Hamblett & Kerrigan: Divorce and Property Distribution
- Oregon State Bar: Restraining Orders and Domestic Violence
- The Superior Court of California: County of San Mateo: Domestic Violence: How Do I Get a Restraining Order?
- Divorce Magazine: Professionals Forum – Illinois Divorce: Constitutional Challenges to Automatic Restraining Orders in Domestic Relations Cases
Heather Frances has been writing professionally since 2005. Her work has been published in law reviews, local newspapers and online. Frances holds a Bachelor of Arts in social studies education from the University of Wyoming and a Juris Doctor from Baylor University Law School.