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Use a Financial Restraining Order to Protect Assets During a Divorce

Updated on
March 9, 2021
Article written by
Attorney Kevin O'Flaherty

This article will discuss how a financial restraining order can protect your assets from being dissipated or misused during a divorce. We will answer the following questions:

 

  • How does a financial restraining order work?
  • How does someone get a financial restraining order?
  • When is a financial restraining order necessary?
  • How long does a financial restraining order last?

 

People make bad decisions when going through a divorce. Often, one or both spouses may feel the other isn't entitled to money or property that should be split equitably. They'll try to empty a joint bank account, sell off property, transfer assets to another person, or move money into a hidden account. In the past, Illinois would place an automatic freeze on a divorcing couple's marital assets, but that law was deemed unconstitutional. If an individual in a divorce is concerned that their spouse will dissipate their assets, they should request a financial restraining order.

 

How Does a Financial Restraining Order Work?

 

A temporary financial restraining order places a pause on a married couple's ability to spend, transfer, dispose of or conceal assets without first receiving permission from the court. The order doesn't wholly prohibit a couple from spending money; they can still use funds to pay for basic living expenses, such as housing, utilities, food, clothing, etc. Any attempt to make a significant transaction, such as buying a car or purchasing a non-essential item, or selling an asset, must get approval from the court. A temporary financial restraining order lasts anywhere from ten to thirty days and can be extended until the divorce's finalization.

 

How Does Someone Get a Financial Restraining Order?

 

If you think your spouse is already trying to hide, spend, or destroy marital assets or you feel their past behavior poses a risk, you can petition the court for a temporary financial restraining order. Obtaining a temporary restraining order doesn't require a mountain of evidence, which is why it only lasts for ten days, and both spouses can still spend money on necessary items. To get a financial restraining order that is effective until the divorce is finalized, you will need to prove the following in a court hearing:

 

  • Irreparable harm may come to you and your children if a financial restraining order does not protect the assets;
  • You own property and assets that you have a right to protect;
  • There is no other better way to protect the assets; and
  • No harm will come to your spouse from a financial restraining order

 

When is a Financial Restraining Order Necessary?

 

Not all divorces involve spouses that are out to screw each other over. However, even if you and your spouse have an amicable relationship, certain couples should still consider getting a financial restraining order; including:

 

  • One or both spouses have a history of wasting money or making unwise financial decisions without consulting the other;
  • One spouse suspects the other is spending marital assets on an affair;
  • One spouse has sole control over the financial accounts that contain the bulk of the couple's marital assets; or
  • One or both spouses have addiction issues and may withdraw substantial funds or sell assets to satisfy that addiction.

 

A large amount of evidence isn't necessary to obtain a temporary restraining order, giving you enough time to figure out what to do next if you think the marital assets are at risk.

 

How Long Does a Financial Restraining Order Last?

 

A temporary financial restraining order will last at most thirty days. Regardless of who requests the order, all martial assets and joint accounts will be frozen. If there is still concern beyond the temporary restraining order termination date, you can petition the court to extend the order until the divorce is finalized. To get a full financial restraining order, you and your attorney will need to present evidence and make your argument at a scheduled court hearing. The other party will have the chance to challenge your position and present their evidence. 

 

 


Use a Financial Restraining Order to Protect Assets During a Divorce
Author

Attorney Kevin O'Flaherty

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

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