The Case for Ohio Restraining Orders
In Ohio, restraining orders are not available in dissolution proceedings but only in divorce, legal separation and annulment actions. Restraining orders have become somewhat “boilerplate” in as much as they are commonplace and routinely granted on an “ex parte” basis at the time the divorce action is filed. A “restraining order” is also executed by a Judge and issued by a Court restraining a party involved in a divorce proceeding from certain actions or activities during the divorce process. The general principle for restraining orders is to maintain the status quo of affairs at the time a divorce action is filed and to avoid “retaliatory” actions by a spouse.
Restraining orders can be obtained by either party without the necessity of an in-Court hearing or proceeding. This means that the restraining orders are “ex parte” in nature and are ordered without the other party being heard on the issue. The primary purpose of restraining orders is to prevent the loss or dissipation or transfer of marital assets before they can be identified, valued, and divided. Restraining orders can also be used to prevent abuse and/or
removal of children from the State of Ohio, except temporarily (14 days or less) for vacation.
If a party believes that the other party might try to hide, destroy, transfer, dispose of, or sell marital assets, his or her attorney would prepare and file a Motion for Restraining Orders, an Affidavit (sworn statement) of the party swearing or affirming why the Restraining Orders are needed, and an Entry/Order of Restraining Orders setting forth the actions or activities that are being restrained.
Next, I shall attempt to explain the most common restraining orders and the rationale for their use:
Common Restraining Orders:
- Abuse: A party would be restrained from abusing, annoying, harassing, molesting, threatening or injuring the other party and/or the minor children.
The use of these types of restraining orders is intended to prevent incidences of domestic violence between the parties. Restraining orders can also be used to prevent or curtail annoying and relentless telephone calls and/or text messages
- Removal of Children: A party would be restrained from removing the minor child(ren) from the State of Ohio, except temporarily (14 days or less) for vacation.
Often a major reason parties with children file for restraining orders is to prevent the other spouse from leaving Ohio and moving away with the children.
- Property: A party would be restrained from damaging, moving, selling, giving away transferring, disposing of, or encumbering any existing or later-acquired interest of either party in any real or personal property, except that party’s clothing, tools of and personal effects.
This restraining order is designed to prevent the loss or transfer or damage to any real property. The most important asset in a marriage may be the marital residence. If the real property were intentionally “trashed” or “damaged”, its fair market value would plummet. This restraining order also covers tangible personal property such as cars, boats, furniture, collections, and jewelry. Also, this restraining order covers intangible personal property such as checking and savings accounts, investment accounts, retirement accounts, mutual funds, and savings bonds.
- Vehicle(s): A party would be restrained from interfering with the other party’s use of the vehicle currently used primarily by the party seeking the restraining order.
So, if Wife/Mother customarily operates the 2010 Toyota Camry, Husband would be restrained from interfering with Wife’s use of said vehicle even if the vehicle was titled in Husband’s name. The important fact is that the Camry is a marital asset and it is customarily operated by Wife. She must have the use of the identified vehicle so that she can get back and forth to work and so that she can transport the children to their activities.
- Funds and Businesses: A party would be restrained from selling, giving away, withdrawing, transferring, or encumbering any funds, accounts, shares, stocks, bonds, or other existing or later acquired interest of either party in any asset, business, corporation, partnership, pension fund, bank, trust, or financial institution.
This restraining order is intended to prevent the party in control of a business entity from destroying the essential “value” of the business by transferring or selling its assets, inventory, or other interests of the business entity. Again, the real intent is to preserve the assets and value of the business entity so that the party not engaged in the operation of the business is not deprived of his or her share of the marital property.
- Debts: A party would be restrained from incurring any debt or making any credit card purchases in the other party’s name or on any joint account.
This restraining order is intended to “stop the dissipation of marital assets” and to try to “cap” the level of the indebtedness of the parties.
- Return to Premises: In Montgomery County, Ohio, a party can be restrained from reentering the marital residence.
In Montgomery County, Ohio, if a party has left the marital residence and has been absent for thirty or more consecutive days, the party remaining in the marital property can obtain the restraining order and is free to change the locks on the doors.
- Utilities: A party would be restrained from terminating, modifying, or changing the basic utility service (gas, electric, water, phone, internet, trash collection) of the marital residence.
This restraining order is intended to protect the party remaining in the marital residence, perhaps with minor children, from having basic utility services interrupted out of anger and/or spite from the party relocating from the marital property. The Court would not be understanding of a Husband/Father terminating electricity to the home occupied by Wife/Mother and minor children during the cold of winter or during the sultry heat of summer.
- Insurance: A party would be restrained from terminating, modifying, or changing the beneficiaries of any life, health, automobile, or other insurance policy covering either party or the minor children.
This restraining order is intended to keep all insurance policies presently in effect at the time the divorce proceeding is initiated to remain in full force and effect during the pendency of the divorce process. The Court wants the “status quo” to remain during the proceeding and does not want an angry party to cancel Wife’s health insurance or Wife’s automobile insurance. In the event a disgruntled party would cancel an important insurance policy during the pendency of the divorce, the risk is that the party canceling the insurance policy would be 100% liable for any damages or expenses incurred by the other party.
- Third Parties: A third-party Defendant would be identified and added as a party to the action and that party would be restrained from permitting the husband/wife from removing, selling, withdrawing, transferring, or encumbering any existing or later acquired asset, real estate, vehicle, funds, accounts, shares, stocks, bonds or other interest of either party.
The intent of restraining orders is to prevent a third-party defendant (usually a financial institution or business) from assisting the errant party from hiding or dissipating marital assets. Usually done in high asset cases where one party doesn’t believe restraining order number 5 above is sufficient.
What happens if restraining orders are violated?
The aggrieved or injured party must initiate an action for the errant party to be found in contempt of Court due to his or her willful violation of the restraining orders issued by the Court. While this policy seems to be “unfair” to the injured party who must then incur court costs and attorney fees, our Courts simply do not have the funds available to act as a “police force” or “enforcer” of the terms of all restraining orders issued by the Court. And, if the Court finds a party to be in contempt of Court, the Court does have the authority to order the guilty party to pay fines and reasonable attorney fees to the injured party. If you want to learn more about contempt actions, please see, Other Dayton Divorce Contempt and Post-Decree Matters you may need to consider beyond Restraining Orders“.
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Anne Shale is of counsel to Dayton, Ohio, law firm, Holzfaster, Cecil, McKnight & Mues. She is a former registered nurse and concentrates her practice in Family Law and Divorce cases.