An automatic restraining order is a court order that issues as a matter of course in every Massachusetts divorce or separate support case. Unlike the commonly understood meaning of a restraining order, an automatic restraining order does not have anything to do with protecting a party from abuse. Instead, it restricts the divorcing parties from doing certain things with their assets.
How Does the Order Issue?
The automatic restraining order comes from Massachusetts Supplemental Probate and Family Court Rule 411 (“Rule 411”). Under Rule 411, an automatic restraining order applies when the plaintiff-spouse or their counsel files a divorce or separate support complaint.
Upon the filing of the complaint, the order goes into effect upon the plaintiff-spouse. In contrast, the order goes into effect upon the defendant-spouse the minute he or she is served, or otherwise accepts service of, the summons and complaint.
The court attaches the provisions of the order to every divorce or separate support complaint to which the order applies. The only exception here is when service is made by publication. For service by publication, the published notice must include a statement indicating the court issued an automatic restraining order in the case under Rule 411.
The Goal of Automatic Restraining Orders
Overall, the goal of an automatic restraining order is to keep the parties’ assets more or less as they were before the filing of the divorce or separate support complaint. Essentially, the intent of the order is to prevent parties from:
- Selling or hiding assets;
- Transferring assets to third parties to avoid disclosure; or,
- Otherwise trying to limit what the other party gets through equitable distribution in the case,
while the divorce or separate support case is open.
So, planning on selling stocks? Or giving your cousin some of your antique jewelry? Using a shared bank account for non-routine expenses? An automatic restraining order may prevent you from doing so during the pendency of your case. And doing so may expose you to court sanctions.
Rule 411 also prohibits a party from incurring any further debts that would burden the other party’s credit. This includes things like unreasonably using credit cards or bank lines, as well as borrowing against a credit line or the marital residence. Further, Rule 411 generally prohibits the spouses from changing the beneficiary of any life insurance policy, pension or retirement plan, or pension or retirement investment account. Regarding insurance policies, Rule 411 prohibits the removal of the other party or the minor children from existing plans. Such insurance plans include medical, dental, life, automobile, and disability insurance.
What Can You Do When an Automatic Restraining Order Is in Effect?
Notably, Rule 411 allows parties, among other things, to sell or transfer property to cover the party’s reasonable living expenses. Such action is also acceptable if it’s in the ordinary and usual course of business or investing. Or to pay reasonable attorney’s fees and costs relating to the case. The key point is that historically typical, reasonable transfers of assets may be okay. But you should avoid doing anything drastic or unreasonable with your assets that may cause the court to question your intent.
Can You Modify or Remove an Automatic Restraining Order?
An automatic restraining order can be modified or removed if both parties agree, or by court order. For a court hearing requesting the modification or termination of an automatic restraining order, a party must file a motion to modify or dissolve the order with the court. It is important to note that before the court will hear the motion, the non-filing party must have at least two-day notice that the order is going to be challenged at a hearing. In some cases, the court may hear the motion on less than two days’ notice; although this is not common.
Absent a court order or an agreement between the parties stating otherwise, the Rule 411 automatic restraining order will stay in effect as-is for the pendency of the divorce or separate support case. The order automatically vacates when the court enters a judgment in the case. Essentially, the order no longer applies after the conclusion of the divorce or separate support case.
What Happens If a Party Violates the Order?
If either party violates the automatic restraining order, the other party can file a complaint for contempt with the court. A complaint for contempt applies when a party to a case does not follow a court order. After reviewing evidence, a judge decides whether or not a party violated the automatic restraining order. If so, the judge can hold the violating party in contempt of court, and the judge can impose sanctions on the violating party. Such sanctions may include fines and/or other penalties.
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