PUBLISHER’S NOTE:
A New client asked me last week if she could get restraining orders if she and her husband file for a dissolution. A great question! It got me thinking that I hadn’t posted a blog article about the topic of restraining orders in a really long time. Click here to read a blog from November 12, 2011. So, here is my updated article!
PURPOSE Of RESTRAINING ORDERS IN A DIVORCE
The information in the blog article linked above from 12 years ago, is still on point. I won’t be redundant here. The purpose for restraining orders in a divorce is to essentially maintain the “status quo” of finances, assets, insurance coverages and the parties’ affairs as they exist at the time of the divorce filing. They are also intended to prevent any unilateral retaliation, threats of violence, and harassment between the divorcing spouses.
Be sure to read your local rules or my 2011 blog to read more about restricted actions that can be included in a temporary restraining order request. Issuing restraining orders is commonplace in divorce or legal separation proceedings in Ohio and typically done without any hearing. Nonetheless, even with these restrictions the parties are permitted to continue using marital funds, so long as it is consistent with their practices prior to the filing of the divorce.
To answer to my client’s question mentioned above, restraining orders are not permitted in dissolution actions. The reasoning is that in dissolutions, the parties have worked together to negotiate all issues between them in the separation agreement in advance of filing, so in theory the need to prevent any unilateral negative action wouldn’t exist.
BE SURE TO READ THE LOCAL RULE OF YOUR COURT
Temporary restraining order practices will vary from County to County. There are significant procedural differences in how the Courts in Montgomery, Greene, and Warren County deal with these requests. However, in most counties the restraining order is now issued against both spouses jointly. That is a change from the typical practice 10 years or so ago. The local rules generally provide “boilerplate” template language that the Courts will grant automatically. If in addition unique restraining orders are needed, a separate motion and hearing will likely be needed.
Here is a link to the Montgomery County Ohio Domestic Relations Court Local Rule 4.17 on temporary restraining orders.
RESTRAINT AGAINST CANCELLING INSURANCE COVERAGES
Ohio Revised Code Section 3105.71 prohibits individuals who are parties to a divorce proceeding from cancelling or terminating health insurance for the family during the action without Court approval. This can be an extremely important reason a party may need a restraining order! The statute also specifies remedies against a party who violates such an Order. Click here to read 3105.71.
SOLE AND EXCLUSIVE USE OF THE MARITAL RESIDENCE
Many clients wonder if the court will order their spouse to move out of the marital residence upon the filing of the divorce complaint and the request for restraining orders. The answer is likely “no”. An exception may be if one spouse has separated and vacated the marital residence for more than 30 consecutive days. (Check your Court’s local rules.)
Probably 60+% of parties in a divorce continue to reside together during the divorce action to conserve financial resources or to remain with the children. Obviously, they would likely need new rules and boundaries to continue to live together under the same roof without harassment and aggression towards the other.
However, courts will entertain motions for sole and exclusive use of the marital residence in extreme circumstances especially where a parent’s conduct is contrary to the best interests of the children. Talk with an experienced divorce lawyer about your situation and the Judge’s inclinations as to the level of proof needed to be successful.
DIVORCE RESTRAINING ORDERS DIFFER FROM CIVIL PROTECTION ORDERS AND TEMPORARY PROTECTION ORDERS
In cases of criminal domestic violence and when civil protection domestic violence protection orders have been issued, exclusive use of the marital residence is frequently ordered, depending upon the facts. Do not confuse a customary temporary restraining order in a divorce discussed here from a DVCPO or TPO. Violating either a DVCPO or a TPO may also have potential criminal consequences!
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Attorney Robert “Chip” Mues has been focusing his legal practice throughout Southwest Ohio primarily in divorce and family law matters since 1978. Chip is passionate about family law and has proudly published the Ohio Family Law Blog since 2007. In addition, he is the managing partner of Holzfaster, Cecil, McKnight & Mues. To learn more about him or the law firm, visit the firm’s website at www.hcmmlaw.com. Appointments are available in person, over the phone or by Zoom. Call us at 937 293-2141.
