By Richard A. Marcus, Esq.


Did you know that by simply filing a petition for dissolution of marriage and signing where indicated on the form, you become bound by four automatic restraining orders? The person you are divorcing will be bound by the same orders once he or she is personally served with the summons or waives service. Since the orders issue automatically, neither party has to apply for them. The actual restraining orders are set forth on the back of the summons.

The first order restrains the parties from removing their minor children from the state "without the prior written consent of the other party or an order of the court." The penalties can be very steep. Thus, for example, a willful and knowing" violation of this restraining order is punishable by imprisonment and up to $10,000 fine.

The second order restrains the parties from "transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate" without the other party's written consent or a court order . . ."except in the usual course of business or for the necessities of life." Note that this also restrains your own separate property. The safest thing to do is obtain your spouse’s consent in writing and if he or she will not provide it, to apply to the court for permission. This order also requires each party to notify the other of any proposed "extraordinary expenditures" at least five business days before incurring those expenditures and to account to the court for all extraordinary expenditures made after service of summons.

The next automatic restraining order restrains both parties from "cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability held for the benefit of the parties and their child or children for whom support may be ordered." Do not remove your spouse from your health or automobile insurance policies, or stop making the payments on those policies, which would have the same effect.

And lastly, the fourth order restrains the parties from "creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer," without the other party's written consent or a court order. Just what is a “non-probate transfer? I will tell you. For purposes of this order, a "non-probate transfer" is an instrument, other than a will, that transfers property on death.

These orders remain in effect until final judgment in the action, or dismissal of the petition, unless earlier modified or terminated by court order. And, the orders are enforceable any place in the state by any law enforcement agency that has received mailed notice of the orders or has otherwise received a copy of the orders and by any officer who has been shown a copy of the orders.