New York's Automatic Temporary Restraining Orders

“I am worried my spouse will withdraw money from our joint account when I tell him/her I want a divorce. Is that legal? How can I stop him/her from doing that?”

Once you initiate an action for divorce and inform your spouse about it, there will be Automatic Orders (automatic temporary restraining orders) put in place that prevent you or your spouse from changing the status quo of any marital financial assets, business interests, health/dental insurance policies, life insurance policies, etc. The plaintiff (the party who initiates the divorce) will be immediately bound by these temporary orders once he/she files for the divorce, and the defendant will be immediately bound by these orders once he/she is properly served (i.e. informed about the divorce action).

Once the divorce action is in motion and both parties are aware of it, they are each automatically required to refrain from withdrawing large sums of money from marital bank accounts, removing the other party or any of their children from any existing health or dental insurance plan, or changing the beneficiary of any existing life insurance policy, to name a few. Additionally, once the divorce action is in motion, neither spouse is allowed to incur any unreasonable debt or to begin charging up a storm on any credit cards. To significantly or drastically change the status quo of any of the above would be unfair to the other spouse.

For example, if you have a joint bank account with $25,000 saved up, neither you nor your spouse can withdraw a significant sum of money from it during the pendency of the divorce litigation. As another example, once you serve your spouse, he/she cannot transfer a large portion of his/her business interests to his/her mother or friend or uncle, nor can your spouse begin drawing on his/her pension if he/she hadn’t been doing that already. In other words, you can’t do anything you wouldn’t have done had the divorce action not been initiated.

You can, however, go about your “usual business.” You can withdraw money from marital accounts to cover marital bills as you would in any other usual month; you can continue withdrawing from your pension if you had already been doing so as your normal course of conduct; you can also use marital funds to retain legal counsel… But no matter what you do, don’t go overboard to the point where your spouse can allege the dissipation of marital assets.

The purpose of these automatic temporary restraining orders is to set the ground rules for the divorce litigation – and to prevent any vindictive or preemptive behavior or action by one party against the other. In essence, these orders are put in place to protect the spouses from one another. The status, for example, of any marital bank account or insurance policy shall remain the same (or at least be treated the same) from the time of filing and service up until the matters are worked out in settlement conferences or in court.

What happens if one spouse violates these automatic temporary restraining orders? The automatic temporary restraining orders are legally binding orders. If a party violates an order, there can and likely will be legal consequences, i.e. penalties. For example, the court can order sanctions against the violating party, or it can order the violating party to reimburse whatever money he/she withdrew. Parties should really aim to abide by the temporary restraining orders to avoid unnecessary legal ramifications against them.

An example of the automatic temporary orders can be found here: https://www.nycourts.gov/divorce/forms_instructions/Notice.pdf

It is important to discuss your entire situation with your attorney so he or she can best serve your interests. Consider contacting the New York divorce and family law attorneys at Peter L. Cedeño & Associates, P.C. to get the job done for you.

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