We are talking about how temporary restraining orders -- also called dissolution action stays -- work in Illinois. These orders are often used in child custody and domestic violence situations, but we are focusing on their role in property division in a divorce. Basically, TROs protect both parties by maintaining the status quo for marital assets.
With an order in effect, Husband cannot take out a second mortgage on the house or put it on the market without the consent of Wife and the court. Wife cannot cash out her IRA without consent. Neither can pawn the silver or change the beneficiaries on life insurance policies. Neither may be allowed to alter an estate plan at all until the order is lifted or the divorce is final.
Having the assets frozen makes a TRO a particularly helpful tool in another way. In order for the property division to be fair, the parties have to know how much everything they own together is worth. Remember from our last post that the order only applies to marital property.
The problem, of course, is that value changes over time. An employer-sponsored 401(k), for example, grows (we hope) with every contribution by the employee-spouse and the employer. By taking a snapshot of what everything is worth on the date the TRO goes into effect, a family law attorney or matrimonial forensic accountant can get a fairly accurate idea of current value.
While a TRO is helpful, it is not magic. The parties must notify their banks and mortgage lenders and every other third party affected by the order that neither she nor he can make any changes.
The laws governing TROs vary from state to state, and some of the differences can look small but can be significant. It is always a good idea to consult with a family law attorney before moving forward with a TRO.
Source: Forbes, "Divorcing Women: Here's What You Need to Know About ATROs," Jeff Landers, July 11, 2012
Our firm handles similar situations to the one discussed in this post. If you would like to learn more about our practice, please visit our Libertyville property division page.