Suppose Jack filed for divorce, and Jill is left confused, unaware of what comes next in the divorce proceedings. Jill is served the divorce papers and realizes that there is an automatic restraining order as part of the summons and complaint. Frantically, she calls a divorce attorney, wondering what a restraining order is all about. Could it mean she cannot have contact with her ex-spouse? Is it possible that she won’t be able to access her financial accounts or her home?
As divorce attorneys, we receive many inquiries regarding the initial paperwork filed in a divorce proceeding. Whether you filed for divorce or are defending a divorce action, you may have heard that Massachusetts Probate and Family Court attaches an automatic restraining order against the defendant spouse at the time of the divorce filing. What is an automatic restraining order; how can you follow it; and what are the sanctions for not following it?
What is it?
In every Massachusetts divorce case, there is an automatic restraining order. This order is present when the plaintiff-spouse files for divorce and when the defendant-spouse is served the initial divorce complaint as part of the Summons. The automatic restraining order is present throughout the entire divorce case, unless modified by agreement of the parties or order of the Court. Upon entry of the divorce judgment or decree, the automatic restraining order is terminated and vacated.
The automatic restraining order, which is codified as Massachusetts Supplemental Probate and Family Court Rule 411, provides for certain restrictions to parties in a divorce. It states the following:
“(1) Neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of any property, real or personal, belonging to or acquired by either party, except: (a) as required for reasonable expenses of living; (b) in the ordinary and usual course of business; (c) in the ordinary and usual course of investing; (d) for payment of reasonable attorney’s fees and costs in connection with the action; (e) written agreement of both parties; or (f) by Order of the Court.
How do you follow it?
Selling your stocks? Giving your children some of your antique jewelry? Hiding your ownership in a partnership or business? The Court could consider all of these to fall under the protections of the automatic restraining order. Engaging in these acts despite the order may expose you to sanctions by the Court.
Rule 411 also prohibits either party from incurring any further debts that would burden the credit of the other party—this includes things like unreasonably using credit cards or bank lines, as well as borrowing against a credit line or the marital residence. Rule 411 also prohibits the spouses from changing the beneficiary of any life insurance policy, pension or retirement plan, or pension or retirement investment account, as well as from causing the removal of the other party or the minor children of the marriage from the coverage.
The goal of an automatic restraining order is to ensure that the parties’ do not make any drastic changes during the divorce proceedings. If one party would do something to give themselves an unfair advantage in the proceedings, or on the other hand, unfairly place the other party at a grave disadvantage, this could greatly impact the outcome of a case.
What if you or your ex-spouse violates the order?
In addition, you may wonder: what happens if you or your ex-spouse violates the automatic restraining order? Is there a way to make the non-compliant party comply? Are there any repercussions for violating the order?
If either party violates the automatic restraining order provision of Probate Court’s Rule 411, the other party can either file a formal complaint for contempt with the Court. A complaint for contempt arises when a party does not follow a court order. It is a judge’s decision as to whether or not the party has violated the automatic restraining order. If so, the party will be held in contempt of court; the judge will impose sanctions based on the severity of the violation. Sanctions are court-ordered penalties for disobeying a law or rule. In this case, they may range from fines to unfavorable rulings on certain motions.
Are you looking for an experienced Newburyport or Andover divorce lawyer or family law attorney? If you need assistance with an automatic restraining order or have any questions about divorce or family law issues, contact our experienced family law attorneys. Call 978-225-9030 during regular business hours or complete our online contact form. We will respond to your phone call or submission promptly.