Understanding the Automatic Restraining Order in Massachusetts Divorce Cases
When filing for divorce in Massachusetts, many clients are surprised to learn that an automatic restraining order immediately goes into effect, restricting certain financial activities during the pendency of the divorce proceedings. This important legal mechanism, established under Supplemental Probate Court Rule 411, serves to preserve marital assets while the divorce is ongoing.
What Is the Automatic Restraining Order?
The automatic restraining order is a court-imposed restriction that takes effect automatically when a divorce complaint is filed in Massachusetts. Unlike restraining orders related to personal safety (such as those issued under G.L. c. 209A or G.L. c. 208, § 18), the automatic restraining order specifically addresses financial matters and asset preservation.
This order is governed by Supplemental Probate and Family Court Rule 411, which provides that upon the filing of a complaint for divorce, the plaintiff becomes bound by the restraining order, and upon service of the complaint, the defendant also becomes bound by its terms.
When Does the Automatic Restraining Order Take Effect?
The timing of when parties become bound by the automatic restraining order is important to understand:
- For the plaintiff (the spouse filing for divorce): The restraining order takes effect immediately upon filing the complaint for divorce with the court.
- For the defendant (the spouse responding to the divorce): The restraining order takes effect when they are served with the divorce complaint.
The automatic restraining order remains in effect throughout the pendency of the divorce action unless modified by agreement of the parties or by order of the court.
What Activities Are Prohibited Under the Automatic Restraining Order?
The automatic restraining order prohibits both parties from taking certain actions without the written consent of the other party or an order of the court. These prohibited activities include:
1. Selling, Transferring, or Encumbering Property
Neither spouse may sell, transfer, encumber, conceal, assign, remove, or dispose of any property, real or personal, belonging to or acquired by either party. This includes:
- Real estate
- Personal property
- Vehicles
- Household furnishings
- Financial accounts
- Investment accounts
- Business interests
2. Health Insurance Coverage Changes
The automatic restraining order specifically prohibits either party from:
- Removing the other spouse from any existing health insurance policy
- Removing any minor children from health insurance coverage
- Changing the beneficiary designation on any existing health insurance policy
Under Supp. R. Prob. & Fam. Ct. 411, the Probate and Family Court will automatically enter a restraining order upon commencement of an action for divorce or separate support, enjoining either party from removing the spouse or minor children from an existing health insurance policy (among other actions).
3. Life Insurance Policy Changes
Similar to health insurance, neither party may:
- Change the beneficiary designation on any life insurance policy
- Allow any life insurance policy to lapse through non-payment of premiums
- Borrow against any life insurance policy if doing so would affect the current beneficiary designation
4. Extraordinary Expenditures
The automatic restraining order prohibits either party from making extraordinary expenditures beyond what would be considered reasonable for the maintenance of the household or business, or for the defense of the divorce action.
What Activities Are Permitted Despite the Automatic Restraining Order?
While the automatic restraining order is comprehensive, it does allow for certain activities to continue:
1. Ordinary Course of Business
Parties may continue to use assets and funds for the ordinary course of business. This means that business owners can continue normal business operations, including paying regular business expenses and receiving income from the business.
2. Necessary Living Expenses
The restraining order permits the use of assets for necessary and ordinary living expenses. This includes:
- Paying mortgage or rent
- Utility bills
- Food and clothing expenses
- Medical expenses
- Educational expenses for children
- Other routine household expenses
3. Attorney’s Fees
Both parties are permitted to use marital assets to pay reasonable attorney’s fees and costs related to the divorce action.
Why Is the Automatic Restraining Order Necessary?
The automatic restraining order serves several important purposes in divorce proceedings:
1. Asset Preservation
The primary purpose is to preserve marital assets until the court can make a fair and equitable division. Without such protection, a spouse might attempt to hide, transfer, or dissipate assets before the court can determine how they should be divided.
2. Status Quo Maintenance
The order helps maintain the status quo regarding the family’s financial situation during what can be a lengthy divorce process. This stability is particularly important when children are involved.
3. Prevention of Unilateral Actions
The restraining order prevents either spouse from taking unilateral actions that could harm the other spouse’s financial interests or health coverage during the divorce proceedings.
Differences Between the Automatic Restraining Order and Other Restraining Orders
It’s important to distinguish between the Rule 411 automatic financial restraining order and other types of restraining orders that may be issued in family law cases:
Automatic Restraining Order (Supp. Prob. Ct. R. 411)
- Focuses exclusively on financial matters and asset preservation
- Takes effect automatically upon filing/service of divorce complaint
- Does not address personal conduct or safety concerns
- Does not require a showing of misconduct to be put in place
Domestic Relations Restraining Order (G.L. c. 208, § 18)
- Addresses personal liberty and safety concerns
- Requires filing a separate motion
- Must be specifically requested and granted by a judge
- Can be made permanent through incorporation into the final judgment of divorce
- May be used for “harassing behaviors that may be temporarily exhibited by parties during divorce proceedings” or “for abuse prevention purposes akin to those of G.L. c. 209A”
Abuse Prevention Order (G.L. c. 209A)
- Specifically addresses domestic violence and abuse
- Requires filing a separate complaint for protection from abuse
- Requires a showing that the perpetrator attempted to cause or did cause physical harm, placed another in fear of imminent serious physical harm, or caused another to engage involuntarily in sexual relations
- Initially lasts for up to one year but can be extended or made permanent
Consequences of Violating the Automatic Restraining Order
Violating the automatic restraining order can have serious consequences:
1. Contempt of Court
A party who violates the automatic restraining order may be found in contempt of court. This can result in:
- Monetary fines
- Payment of the other party’s attorney’s fees
- In extreme cases, incarceration
2. Negative Impact on Property Division
Violations of the automatic restraining order may be considered by the judge when determining the final division of marital property. A spouse who has attempted to hide or dissipate assets may receive a less favorable division of property.
3. Damage to Credibility
Violating the order can damage a party’s credibility with the court, potentially affecting other aspects of the divorce case, including child custody determinations.
Modifying the Automatic Restraining Order
There may be legitimate reasons why a party needs to take actions that would otherwise violate the automatic restraining order. In such cases, there are two primary ways to modify the order:
1. Written Agreement Between Parties
If both spouses agree that certain actions should be permitted despite the restraining order, they can document this agreement in writing. This agreement should be specific about what actions are permitted and should be filed with the court.
2. Court Order
If the parties cannot agree, either spouse can file a motion asking the court to modify the automatic restraining order to permit specific actions. The court will consider whether the requested modification is reasonable and necessary.
Practical Considerations for Clients
For clients navigating a divorce with an automatic restraining order in place, several practical considerations should be kept in mind:
1. Document Pre-Divorce Financial Status
Before filing for divorce, it’s advisable to document the status of all financial accounts and assets. This documentation can help demonstrate compliance with the restraining order and protect against false allegations of violations.
2. Maintain Detailed Financial Records
During the divorce, keep detailed records of all financial transactions to demonstrate that they fall within the permitted categories of ordinary living expenses or business operations.
3. Seek Permission When Uncertain
If contemplating a financial transaction that might violate the restraining order, it’s better to seek permission from the spouse or the court rather than risk a violation.
4. Consider Additional Protections
In some cases, the automatic restraining order may not provide sufficient protection. As noted in Massachusetts practice, “Why seek an injunction or an attachment when an automatic restraining order per Supp. Prob. Ct. R. 411 is designed to protect marital assets during the pendency of a divorce? Some spouses may nevertheless attempt to hide funds, sell assets and pocket the returns, or otherwise circumvent the automatic restraining order. An attachment or injunction can serve as a second line of defense.”
Conclusion
The automatic financial restraining order is a crucial mechanism in Massachusetts divorce proceedings that helps preserve marital assets and maintain financial stability during what can be a contentious and lengthy process. Understanding the scope and limitations of this order is essential for anyone going through a divorce in Massachusetts.
For clients facing divorce, working with an experienced family law attorney is vital to navigate the complexities of the automatic restraining order and ensure compliance while protecting your financial interests. At Weberg Law, we provide comprehensive guidance on all aspects of divorce proceedings, including compliance with automatic restraining orders.
For more information about the statutory framework governing divorce in Massachusetts, you can review Massachusetts General Laws Chapter 208, which provides the legal basis for divorce proceedings in the Commonwealth.