What Is a Restraining Order
A restraining order is a court-issued directive that prohibits one spouse from taking specific actions during divorce proceedings. The most common restrictions prevent contact with the other party, removal of children from the state, or transfer of marital assets without court approval. Unlike a Protective Order, which typically addresses domestic violence or harassment, a restraining order in divorce focuses on preserving the status quo and protecting assets during the litigation process.
In divorce cases, restraining orders are frequently automatic. Many states, including California, Florida, and Texas, implement automatic temporary restraining orders (ATROs) the moment divorce papers are filed. These orders take effect immediately without requiring proof of wrongdoing or a hearing. In California, for example, Family Code Section 2320 mandates that both spouses are automatically restrained from transferring, concealing, or disposing of community property from the moment a divorce petition is served.
Types of Restraining Orders in Divorce
- Automatic Temporary Restraining Orders (ATROs): Activate upon filing without a hearing. They typically last 30 days or until a preliminary injunction hearing occurs.
- Preliminary Injunctions: Issued after a court hearing where both parties present arguments. These can last until trial or final judgment.
- Asset freeze orders: Prevent either spouse from selling, transferring, refinancing, or encumbering real property, vehicles, investments, or business interests.
- Contact and communication restrictions: Prohibit direct or indirect contact except through attorneys or court-approved communication apps. Some orders permit contact only regarding child custody or health emergencies.
- Custody-related orders: Prevent one parent from removing children from the state or relocating without court permission, critical when custody arrangements remain undecided.
Filing Requirements and Enforcement
Filing a restraining order request varies by state and whether you seek an emergency Ex Parte order. Most jurisdictions require you to complete a formal petition detailing the specific prohibited actions and why the order is necessary to prevent irreparable harm. Courts consider whether the requesting party is likely to succeed on the merits and whether waiting for a full hearing would cause damage.
Violation of a restraining order constitutes contempt of court. Penalties range from fines of $500 to $5,000 and attorney fees to jail time up to 6 months, depending on the severity and your state's family law statutes. Courts document violations through written affidavits and evidence, then hold a contempt hearing where the violating spouse has a chance to explain or contest the allegation.
Impact on Custody, Support, and Property Division
Restraining orders protect the interests underlying custody, spousal support, and property division. An asset freeze prevents one spouse from liquidating retirement accounts, selling property, or transferring funds to third parties, ensuring marital assets remain available for equitable division. Contact restrictions in high-conflict cases protect both parties and reduce opportunities for coercion or intimidation during settlement negotiations.
Courts view violations of restraining orders as relevant to overall credibility and character. A spouse who violates an order may face reduced custody access, fewer spousal support awards, or less favorable property division, as judges interpret violations as evidence of disregard for court authority and poor judgment in co-parenting contexts.
Common Questions
- Can I modify a restraining order during divorce? Yes. Either party can request modification by filing a new motion with specific changed circumstances. Courts must hold a hearing before modifying terms. This is common when temporary orders become unnecessarily restrictive or when circumstances genuinely change.
- Do restraining orders expire automatically? In most states, temporary automatic orders expire after 30-45 days unless converted to preliminary injunctions after a hearing. Preliminary injunctions remain in effect through trial unless earlier terminated by agreement or court order.
- What if my spouse violates the order? Document all violations with dates, times, and specific actions. File a motion for contempt with supporting evidence. Bring communications, witness statements, or police reports to the contempt hearing. Courts take violations seriously and can impose immediate sanctions.