The Preliminary Injunction – What does it cover and what does it mean?
The decision to file for divorce and the process associated with it can be incredibly difficult and emotional for all parties involved. Despite the fact that an overwhelming majority of people chose to go without an attorney in this process, it is usually in your best interest to seek legal counsel so that you can be assured your interests are protected.
Anyone who is preparing or thinking about filing for divorce in Arizona should be familiar with the orders contained in the Preliminary Injunction. These orders restrict each party’s conduct toward each other and to the parties’ minor children. The Preliminary Injunction also restricts selling / transferring marital property, subject to very narrow and limited exceptions.
The initial Petition for Dissolution of Marriage is complicated enough, but there are several additional documents that are required to be filed along with the initial Petition. One of these required documents is the “Preliminary Injunction.”
The Preliminary Injunction is a court order which is issued at the time of filing an Arizona divorce. The Injunction becomes enforceable against the Petitioner (the person who files first) immediately upon filing the Petition for Dissolution with the court. The Injunction likewise becomes enforceable upon the Respondent when they are served with the initial batch of paperwork.
The Preliminary Injunction is an order from the Court that stops certain behaviors and actions from taking place. One of the most important actions prevented by the Preliminary Injunction is that it prohibits either parent from removing children who are common to the marriage from the State of Arizona without a written agreement between the parties or court order.
The Injunction also forbids each party from removing the other party or the minor children from existing insurance coverage (medical, hospital, dental, automobile, and/or disability insurance). Most insurance plans must be maintained until further orders from the court or an agreement of the parties.
As to assets and debts, the Injunction orders that “the parties not sell, transfer, conceal or otherwise dispose of the marital assets”. Similarly, the parties are enjoined from taking out new loans against community property. This includes a specific prohibition from encumbering the marital property, such as not paying bills or allowing marital plans (insurance, subscriptions, etc…) to lapse.
However, certain exceptions exist, for instance, the respective parties are allowed to sell or encumber marital property in order to provide “the necessities of life”, including specifically paying reasonable attorney’s fees for representation in the divorce case.
The language in the Preliminary Injunction restricting the parties from transferring community property is commonly misunderstood to “freeze” community assets. The Injunction, however, only governs the conduct of the parties to the case. It does not restrict the conduct of third parties, such as banks or other financial institutions.
The Preliminary Injunction also forbids both the parties from harassing, disturbing the peace of, or committing an assault or battery on the other party. On their own, these actions are against the law and may subject the person in violation of the order to criminal charges. If these actions are committed while the Preliminary Injunction is in place, that person may also find themselves subject to civil contempt and to additional criminal charges for interference with judicial proceedings.
Failure to understand and comply with the Preliminary Injunction may lead to adverse results in the divorce action as well as to possible criminal charges. The Court can assess sanctions against the party found to be in violation of the Preliminary Injunction including, but not limited to, attorney’s fees and Costs, equalization of funds and property, contempt of court, and in the worst-case scenario incarceration.
If you or someone you know is facing a potential divorce in Arizona, please have them reach out to us today for a free consultation at (520)740-1802 or through our website