Automatic Restraining Orders: What You Need to Know
Temporary restraining orders are well-documented and those in need move heaven and earth to make sure they get them to protect themselves and their children from potentially abusive situations involving their estranged spouse during a divorce. However, there are also other restraining orders applied to both partners, in some states, as part of the normal process even in the absence of any abuse or violence.
What is an automatic restraining order?
This kind of restraining order is one that comes automatically into force once divorce papers are filed and served to the other partner. The scope of this kind of order limits certain types of actions from being taken after the divorce is initiated and is prevalent in some states and doesn’t exist at all in others.
Automatic restraining orders apply to everyone
The terms apply to both the spouses, regardless of which of them filed for the divorce, provided they are in a state that has the system of applying these restraining orders automatically to all divorces.
Specifically, such restraining orders relate to things like putting liens against marital property, modifying insurance beneficiaries, sale of property, as well as withdrawal of funds from bank accounts.
How Automatic restraining orders impact child custody
If there are children involved, then the scope of the order also typically covers the process to be followed if a child is to be taken out of state during the divorce process – usually requiring the written consent of the other parent. This is done to prevent foul play or one parent taking the child away during the interim to potentially build a stronger case for their need to get full custody once the divorce is final. This way, a child still has access to both parents and the flight risk is also minimized.
Modifying an automatic restraining order
Even if you are in a state that has an automatic restraining order you can approach the court to make a change if needed, depending on the situation. For instance, if there is a dire need to make the sale of marital property in the interim for either or both of the spouses to eke out a living, or if one parent is unable to get hold of the other to sign off on approval to take the child out of state, the court can intervene and override the automatic restraining order.
Temporary restraining orders or permanent?
It is important to note that automatic restraining orders cease to be valid once the divorce is finalized. If some aspects of the restraining order need to be carried forward after the divorce, these will need to be explicitly mentioned in the final divorce agreement. Because automatic restraining orders are linked to certain stages of the divorce process, they end when the divorce ends. In that sense, they are not unlike a temporary restraining order. Just remember to be sure you have all your bases covered when the divorce does finally come through.
To learn more about the divorce process in California and how mediation can help, please visit our page, “What is Divorce Mediation.”
Gerald A. Maggio is a trained Orange County divorce mediator who has amicably resolved cases many cases out of court, as well as an experienced divorce and family law attorney. Mr. Maggio founded California Divorce Mediators in 2012 with the belief that although “not every marriage can be saved, every family can” and a mission to save families from the financial and emotional distress associated with traditional divorce litigation. California Divorce Mediators is located in Irvine, California, and serves the Orange County area and other counties in California offering divorce mediation, child custody mediation and mediation of other family law matters.
