How to File a Temporary Restraining Order

Posted on July 6, 2015 in Civil Law

In divorce cases, the status of minor children is usually the most sensitive aspect between couples.  There also may be a significant amount of property and financial assets at stake for distribution. Filing a divorce action means that for the statuses of minor children and marital assets need to be determined as of a certain date and the marriage needs to effectively be put on hold so that the legal system can more effectively determine the proper disposition of these issues.

In the case of property and financial assets, locations and values need to be verified and “movement” of these items can impede this valuation. Too much “post-separation movement” while the divorce action is being arbitrated can be potentially confusing for both sides and can be costly especially when attorneys, accountants, and other outside consultants are trying to assess the value of the marital “estate”.  The legal instrument that carries out this cessation of marital activity is the Temporary Restraining Order.

How to file a temporary restraining order? In some states, like California, the Temporary Restraining Order Provision is already summarized at the back of the Petition for Dissolution. In other words, the legal statutes of certain states dictate that certain activities involving financial assets and minor children should be stopped or abated UPON agreement by the couple that a divorce should actually be consummated.

In this case, the Temporary Restraining Order becomes an Automatic Temporary Restraining Order. An Automatic Temporary Restraining Order becomes immediately effective when the petitioner files the divorce action, and upon the service of a summons.  The Temporary Restraining Order remains in effect until the final judgment for dissolution is signed by the court.

In other states that do not provide for Automatic Temporary Restraining Orders, a separate filing needs to be made in conjunction with the filing for the petition for divorce. In some cases, parties often have incur the additional expense of filing for an ex parte or emergency Temporary Restraining Order especially where there is some fear that a party or parties will be damaged by the actions of the other party during the hearing process.

The important thing to remember is that whether a Temporary Restraining Order is automatic or not, it can still be subject to changes after the initial Temporary Restraining Order has been agreed upon and approved by the court.

The following prohibitions and restrictions can be included in a Temporary Restraining Order:

Financial Assets

  • Loans may not be taken out with community property as security or collateral. In other words, pledging this property as security for debt by either party is not allowed even if the title or possession of the property is not transferred to the prospective lender,
  • Joint bank and investment accounts may not be closed and the amounts transferred to the separate account of one of the parties,
  • Items and cash cannot be removed from a safe deposit box or safe and transferred under the control of one of the parties,

–   Assets cannot be destroyed and they cannot be hidden from the   spouse, and

–   Other parties may not be added as co-owners of existing property.

Financial instruments

  • The cash from a life insurance policy may not be taken out and the proceeds deposited into a separate account,
  • Beneficiaries from life insurance policies cannot be changed,
  • The spouse cannot be removed from health insurance policies even if they are not living together,
  • The spouse cannot be removed from automobile insurance policies if the couple is not living together, and
  • Beneficiaries named in retirement accounts cannot be changed.

Status of minor children

  • Children cannot be removed from health, dental and vision insurance policies even if they are not living with the policyholder, and
  • The movement of children to other states or countries may be restricted.

Some “movement” of assets may be allowed while waiting for the final decree of divorce.  These include:

  • Payment of attorneys retained for the divorce action,
  • Spending marital assets in, “the usual course of business”, subject to court determination as to the validity of such spending, and
  • Certain changes to wills and similar documents.

It should be noted that the divorce courts in the United States have wide discretion in which items can be included in a Temporary Restraining Order. The details involved can be confusing and perplexing especially in cases where many items are subject to the Temporary Restraining Order. Always keep in mind that Temporary Restraining Orders are legal protections for the protection of both parties, and violating the terms by either can lead to serious legal consequences therefore it is always advisable to seek an attorney’s advice in this area.

How to File a Temporary Restraining Order

Steps to Follow on How to File a Temporary Restraining Order

Each state in the United States has different rules, deadlines, and documentation for filing a Temporary Restraining Order.  But there are some generalized steps at the minimum that need to be done even in states where an automatic Temporary Restraining Order applies at the beginning of the divorce filing process.  These steps assume that a qualified attorney in family law will be available in more complex cases.

  1. Before filing for a Temporary Restraining Order, assemble the necessary supporting documents such as, wills, agreements, worksheets, titles to real and personal property, and any evidence supporting ownership and access to, safe deposit boxes, investment accounts, bank accounts, insurance policies. If minor children are involved, the Temporary Restraining Order should also include which actions cannot be carried out by each party, especially regarding movement of children across state lines, and amendment of passports, and other government documents.
  2. Determine what items that you want to be included in the Temporary Restraining Order.
  3. Execute a formal restraining order. Each state will have a different form and documentation requirements.  Generally, the Temporary Restraining Order will be filed together with the divorce complaint.  The order will contain all the transactions and actions that CANNOT be made before the final divorce decree is granted.  Note that the order can be changed subsequent to initial filing with consent by both parties.
  4. Have an officer of the court serve the Temporary Restraining Order if separate from the original divorce action. The officer will usually be a member of the law enforcement authorities, such as a sheriff or a marshal.  Keep a copy of the notice of service for future reference.
  5. In some states, a Temporary Restraining Order is in force for a limited time. Any extension will need to be filed with a separate document. Some jurisdictions will require a formal hearing to enforce an extension of a Temporary Restraining Order.
  6. When one of the parties would like to contest a Temporary Restraining Order, they must file a formal request with the court. A hearing will then take place to hear both sides of the divorce action.
  7. After the Temporary Restraining Order is served and a court hearing is mandated, all supporting documentation should be brought to the court and presented as exhibits.

 

7 Things to Consider Before Filing a Divorce

Posted on June 6, 2015 in Family Law

Marrying couples are always stepping into marriage enthusiastically with the hopes that their marriage will be for eternity. No couple gets married thinking that along the way, the marriage will get so frustrating and the only option is to seek a divorce. Sadly, it happens.

Couples facing dissolution usually attempt to find ways to salvage their marriage. Some couples find the essence of their union and manage to helm the rough patches while others, unfortunately, fail to render everything. It is during these times when the couples ask counsel and experts for the best advice. The decisions accompanying divorce are always critical and the repercussions can last a lifetime, but it bears stressing that the problems and frustrations do not always warrant divorce. Divorce is a personal decision and only you can know what’s right for you.

At the very least, the last-ditch effort lies in you. Before actually turning into divorce as the penultimate solution, remember that there are 7 things to consider before filing for divorce:

1. Do I still have feelings for my spouse?
First thing’s first. It’s better to determine if the feelings that initially created the relationship still exist. Did the problems and petty quarrels make you feel hopeless? If it’s only rust needing a little shrugging, then you should work on it before deciding to divorce. Always remember that even a used, worn-out candle can still be lit as long as the wick remains.
2. Did I exert all the efforts to save my marriage?
Seeing a couple expert therapist might do you favors. If it does not work, try a marriage counselor. If you think the current therapy is not of any help but the marriage is still redeemable, keep seeking for ways before calling it quits. In the end, the best counsel cannot dictate the outcome of your marriage nor can he repair whatever is wrong with your relationship. Always remember what we said before: Divorce is a personal decision and only you can know what’s right for you. Thus, it requires your earnest effort and commitment.
3. Have I looked and accepted my contributions in our difficulties?
One of the reasons why marriages fail is because dysfunctional couples tend to hurl the blame on each other. No one would want to admit his faults and it ends up aggravating the situation. One thing that the couples have to admit is that one way or another, they contributed to the problems. As stated in an article on divorce in the Huffington Post, taking responsibility for your part isn’t the same thing as being fully at fault. No matter what has happened, you’re not responsible for your partner’s behaviors and responses. You are, however, responsible for yours. So admitting your mistakes will make it easier for both of you to work them out together.

Filing a Divorce4. Are stresses and standards in the way of our marriage?
Married life is accompanied by stressors so strong that the effectiveness of the union may decrease dramatically. Financial burdens, hectic schedules or poor communication may seem so big to resolve. These also contribute to the personal standards the spouses aim to achieve, such as material leisure they rather want, not need. It was said that big problems are often too big to handle alone particularly when there is too much emotional involvement, so before choosing divorce, consider talking the practical and emotional issues together.
5. Are we sexually satisfied?
Sometimes, couples tend to concentrate on the inexistent problems only to realize that the only thing impairing their connection is sex. Lust is an inevitable component of marriage. The good thing about it is that it can go along with love so that an effective sexual counseling may dig into the problem.
6. Is there someone else outside of our marriage contributing to this?
Common notion states that husbands tend to cheat on spouses, but that does not imply that wives do not do so either. If third-parties contribute to your downward spiral, it’s better to assess if the serious still outweighs the fling.
7. Did we consider the impact of this on the children?
Lastly and perhaps more importantly, is there a consideration given to the children as to their future? The dissolution of the marriage may relieve both the spouses but it is only the beginning of the emotional challenge the kids would have to go through. In the end, the children are the ones to feel the repercussions, so it is likely to put their interests on top of the reconsiderations.

These are only 7 things to consider before filing for divorce, yet there are still so many important reasons to take into consideration before putting an end to your once preciously cherished marriage. Divorce is not always the way. Keep looking on the positive side.

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Parental Rights in Joint Custody

Posted on May 21, 2015 in Family Law

Marriages are expected to last forever, yet these expectations often end up being sour. Husbands and wives develop resentments and distance that compel them to seek for divorce. During this fateful stage, the ones mostly receiving the negative repercussions are the children, especially when the battle for custody ensues.

It is sad to contemplate that the parents who are expected to be one in supporting and raising their child are the ones who will eventually separate and contend against the other for custody. This period in the divorce process is perhaps the most traumatic for the children. Legislators in many states are aware of this, which is why they came up with ways to convenience the separating parents and children through the different parental rights in joint custody without sacrificing parental authority.

The most important settlement during a divorce process is the custody of the child or the children. Children having to deal with a broken family, separating parents may asseverate joint custody rights for the sole benefit of the children.

There are two ways joint custody can be referred to; one is joint legal custody and the other is joint physical custody. Joint legal custody exists when parents decide to share the decisions regarding the child’s shelter, schooling, religion, medical needs and other basic necessities while joint physical custody refers to the type where the child lives with each parent simultaneously for almost the same amount of time. By any means, joint custody still results in both parents having to share the upbringing of the child as well as the responsibility of rearing him or her, thus co-parents can still play the vital role in raising the child post-marriage. But what are the different parental rights in joint custody?

Parental Rights in Joint Custody
One of these rights is the visitation rights, or the right of the parents to see their children personally. Specifically, the joint custody visitation right is the most illustrative term. In this visitation right, there will be a schedule to be followed by the parents who have been awarded joint custody. This gives the parents a chance to maintain a relationship with their child without taking more time than the other. It is up to them to create and decide for their own visitation schedule. They will need to create a schedule that allows their child to spend time with both the parents separately which should be balanced to avoid straining or frazzling the child. There are many pre-arranged schedules that would work well with joint custody visitation rights and the co-parents may base their own timetable.

The parents may also seek legal advice for proper scheduling. Family law experts can make their own recommendations to your already created custody schedule. Experts provide unbiased concepts to protect both the rights of the co-parents. Family law experts have many custody schedules to base from. The parents may see the recommendations to have either benefits or drawbacks and they can decide which to add or omit. It’s important for the parents to find the one that works best for their own joint custody visitation rights.

Visitation rights can range from a total prohibition of one parent to have contact with the child to situations where the parents may equally share the child’s time. Specifically, two other visitations rights are categorized in family law as the No Visitation and the Supervised Visitation rights.

No Visitation is obviously the right of the other parent to bar contact between the child and the other parent due to various reasons. Common reasons could be that one parent may impose grave danger upon the child or that one parent is incapable of visiting his child due to insanity or disease. The visitation rights are altogether stripped off the other parent.

Supervised Visitation, on the other hand, is the moderated version of the right. When the visitation is deemed possible to cause harm to the child, supervision by the other parent or a guardian may be ordered. In some instances, supervised visitations may be needed in events when a child and the parent haven’t seen each other for quite some time and there is a need for a step-by-step acquaintance. Depending upon the risk factors, this supervision may be provided by the parent or a professional agency.

When a marriage fails and the children end up choosing both parents, it’s beneficial to know these parental rights in joint custody. The essence of joint custody is for co-parents to acquire visitation rights and continue exhibiting their love for the child when the warmth and comfort of a complete family are no longer possible.

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Rose Rix Law Firm Offers Injury Services

Posted on May 15, 2015 in Legal Services Personal Injury Case Rose Rix Firm

Rose Rix

Physical injury? No worries! Our team can cater to all kinds of legal services for you. It is defined by statute as “physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ.”

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Which States are Common Law States?

Posted on February 27, 2015 in Family Law

A common law marriage in common law states means that a couple can be recognized as husband and wife and entered into by couples by choice and/or by circumstance. Common law marriages avoid many of the documentary requirements of a traditional statutory marriage. In this type of marriage, no license is obtained and no wedding ceremonies are held.

Certain basic laws applicable to statutory marriages also apply to common law marriages, of which capacity to enter into a marriage contract is the most important. Aside from these requirements, the couple must publicly hold themselves as husband and wife including cohabitation in some cases. The laws of the states that allow common marriage differ on the length of time that a couple must have cohabitated, even if cohabitation by itself does not create a common law marriage.

common law

In the eyes of the law, a common law marriage is treated the same way as statutory messages especially with regard to tax laws that regard couples in a common marriage in the same manner as couples in a statutory marriage.

While a couple can enter into a common-law marriage, they cannot agree to a “common law divorce”.

In alphabetical order, the following are the common law states in the United States. Also, only three jurisdictions recognize same-sex marriages as common marriage: Iowa, Rhode Island, and the District of Columbia. A couple married under the common law in one state may move to another state that does recognize common law marriage and still be recognized as common law husband and wife.

• Alabama. In this state, the parties must have the mental capacity to enter into a marriage, have public recognition of their marriage, and the marriage must be consummated. Both parties must be at least 16 with parental consent.
• Colorado. The requirements in this state are, the cohabitation must prove the relationship, the couple must hold themselves out to be husband and wife, and consent to be husband and wife.
• District of Columbia. The requirements for establishing a common law marriage are, the parties’ explicit intent to be married, that the two persons are legally free to marry, and if the couple is known in the community to be husband and wife. D.C. recognizes same-sex marriages.
• Iowa. The state requires three elements to have a valid common law marriage: The couples’ intent and agreement to be married, continuous cohabitation, and their public declarations holding out to the public that they are husband and wife. Iowa recognizes same-sex marriages.
• Kansas. In Kansas, the requirements are, the man and woman must be competent to enter into a marriage. They must have a present marriage arrangement, and are cohabitating. The couple must also represent themselves to the public that they are married.
• New Hampshire. This state recognizes common law marriages only upon the death of one of the spouses. In other words, common law marriages are only recognized posthumously and are for inheritance purposes only. Also, the couple should have been generally reputed as husband and wife for at least three years before the death of one of the spouses.
• Montana. The parties must be competent to enter into a marriage, mutually consent to a common law marriage, cohabitate, and have a reputation of being married.
• Oklahoma. The requirements are the parties must be competent, must agree to enter into a marriage relationship, cohabitate, and must have a reputation of being married.
• Pennsylvania. Recognizes common law marriages made before 2005. A common law marriage was established by the exchanging of words between a man and a woman indicating their intent to be married at present.
• Rhode Island. In Rhode Island, a common law marriage exists if a man and woman seriously intended to be married and engage in conduct that leads to a reasonable belief by others in the community that they are married. Rhode Island recognizes same-sex marriages.
• South Carolina. A man and woman must have a present intent to enter into a marriage contract, and must have others believe that they are married.
• Texas. Also called, “informal marriage” in the state. The couple must sign a form provided by the county clerk, must agree to be married, cohabitate, and represent to the public that they are married.
• Utah. A court or administrative order must establish that the parties are of legal age and capable of giving consent. The parties must also have the capacity, have cohabited, and have the reputation that they are husband and wife.

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