Not uncommonly, a party tries to raid the bank accounts, hide the assets, transfer property or make some other preemptive move in order to gain an advantage over a spouse. When this happens, it is crucial to act quickly to obtain a restraining order or an injunction to freeze the assets. Judges can grant temporary restraining orders not only to prevent domestic violence but to prevent an unlawful diversion or dissipation of marital assets.
An emergency restraining order can freeze bank accounts, stop sales and transfers of property, and halt wild spending sprees. If properly and timely drafted, filed and served, a restraining order to free assets will enable the parties to maintain their status quo, unless the divorce gets underway and each party is afforded a fair opportunity to present evidence concerning the ultimate disposition of the assets.
A party should never attempt to obtain an “emergency freeze” on his or her own, without the assistance of trained legal counsel. Restraining orders of this kind represent a form of injunctive relief, and there are special rules governing the grant of injunctions. An attorney may be required to gather the necessary background information, and documentary evidence, if available, to demonstrate that there are urgent circumstances, and that the spouse seeking the emergency freeze will likely suffer immediate and irreparable harm unless injunctive relief is granted. If a restraining order is granted without both sides being present at court (on an ex parte basis), the court will hold a subsequent hearing to allow the restrained party to offer his defenses.
Judges typically proceed cautiously and carefully before restraining parties from having access to their own assets. A broad restraining order can have unintended consequences: It can prevent a spouse from paying household bills or from operating his business and conducting ordinary business financial transactions. On the other hand, an order that is too narrowly written can ignore risks of dissipation by leaving gaps that an artful spouse will exploit. Thus, the language of the restraining order is critical, and the period of time that it will continue (until it expires) is likewise important.
Some states issue automatic temporary restraining orders (ATROs) at the commencement of a divorce case. ATROs essentially decree that the parties should not dissipate assets and direct the parties to utilize their bank funds for necessities. An ATRO does not, however, freeze bank accounts or prevent diversionary tactics of a more sophisticated nature. Therefore, an emergency freeze of assets may be necessary even in states where ATROs are routinely issued.
The Law Offices of Mark S. Guralnick stands ready to assist you if you require an emergency freeze of assets or if you have any questions concerning this process.