Preliminary Injunction in Divorce
Arizona Divorce Attorneys Address Preliminary Injunctions During a Divorce
What is a Preliminary Injunction and How Does it apply to Filing Divorce in Arizona?
A preliminary injunction is actually a type of restraining order in the context of Arizona divorce law. The preliminary injunction goes into effect on the spouse who files, or the petitioner, once the divorce petition is filed. Once the other spouse, or the respondent, is served with the petition, the preliminary injunction applies to them as well.
The preliminary injunction restricts both spouses from taking a number of actions, depending on the assets the couple share and whether or not they have minor children. Most preliminary injunctions will have similar wordings and cover standard issues typical to divorce. Failure to abide by a preliminary injunction can mean fines, penalization during property division, and even incarceration for the violating spouse.
Things that a Preliminary Injunction can Prevent
A preliminary injunction can forbid a variety of actions during a divorce, including:
- Either parent taking the couple’s shared children out of state- however, the parents can agree to an exception in writing or one parent may seek permission from the court.
- Taking out new loans on marital assets: Common examples are taking out a second mortgage on the home, getting a title or registration loan on a vehicle acquired during the marriage, or putting your house or vehicle up as collateral for a personal loan.
- Failing to keep up with payments on bills during the divorce period: This can result in assets to be repossessed, insurance coverage to lapse, utilities to be shut off, and more. If one spouse is paying more than their fair share during the divorce, they will be credited later during property division.
- Selling, transferring, or otherwise concealing community assets: Unless necessary to pay for basic necessities, community assets are frozen during a divorce.
- Harassing, assaulting, stalking, etc., the other spouse: Violating this portion of the preliminary injunction can also result in separate criminal charges.
- Removing insurance coverage: This applies to both spouses and their shared children for policies on dental, medical, life, disability, automobile, and any other applicable insurance coverage.
Exceptions to the Preliminary Injunction in Arizona
Arizona family law recognizes that most families struggle financially while going through a divorce. While the preliminary injunction prevents the spouses from selling or encumbering community property assets during the divorce, there is an exception to this asset freeze. Either spouse may sell or encumber a community asset to pay for the “necessities of life.” This includes basics like rent and groceries, but can also include reasonable attorney’s fees for the divorce.
Community property can also be sold during the divorce either by agreement by both spouses or if approved by the court. Property may also continue to be sold if it is the ordinary course of business for one or both spouses. The preliminary injunction only applies to the spouses, not third parties; a creditor can still proceed with collection such as a vehicle repossession during the divorce.
Consequences for Violating a Preliminary Injunction in Arizona
Under Arizona law, violating a preliminary injunction is the misdemeanor crime of interference with judicial proceedings. This is a Class 1 misdemeanor punishable by up to 6 months in jail and $2,500 in fines. A police officer does not need a warrant to arrest a spouse for violating a preliminary injunction during a divorce.
Violation of a preliminary injunction during a divorce can result in civil contempt proceedings as well. The spouse who violates the order will face fines and additional attorney’s fees. This can also affect the property division stage of the divorce.
What is Arizona Revised Statute Section 25-315(G) and How Does it Apply?
Arizona Revised Statute Section 25-315(G) is the legislation that makes violation of a preliminary injunction a crime. It allows for arrest and prosecution for interference with judicial proceedings. More information about these charges can be found in Arizona Revised Statute Section 13-2810.
This section allows the spouses to file a copy of the preliminary injunction with their local police department. Whichever spouse files the copy initially must also file any amendments to the orders with the police department. This facilitates the process of arresting a spouse for violating a preliminary injunction during a divorce. This Section also allows for punishment through both criminal AND civil procedures.
Preliminary Injunction in Paternity and Divorce Cases.
Clearly, violating the preliminary injunction in your case will have serious consequences. If you and your spouse agree to an exclusion on any of the issues covered by the preliminary injunction, such as interstate travel with the children or the sale of marital assets, be sure to get this agreement in writing.
The injunction prevents not only the sale and transfer of community property assets, but also the concealment of such assets. One spouse may set up trusts or give large gifts to friends and relatives immediately before a divorce to attempt to exclude these funds from property division. One spouse may try to hide their earnings, but the other spouse will be able to obtain this information with a subpoena from the court.
Things that are Legally Prohibited in an Arizona Divorce.
- Selling, transferring, or encumbering community property assets for any reason other than basic life necessities and reasonable divorce attorney’s fees.
- Harassing, threatening, intimidating, stalking, and otherwise abusing your spouse and children. This includes harassing calls to your spouse’s place of employment and family members or making a scene at your child’s school. Some of these acts are separate criminal offenses.
- Removing coverage dental, vision, medical, life, disability, and other insurance policies during the divorce period.
- Traveling out of state with shared children without the express permission of the other parent or the court.
- Failing to make payments on bills and monthly expenses out of spite to the other spouse.
Whether you would like assistance drafting additional terms to add to your preliminary injunction, or have been accused of violating the preliminary injunction in your divorce case, our experienced Arizona family law attorneys are here to help. We offer free initial consultations as well as competitive rates and monthly installment options. To learn more about preliminary injunctions and how this will affect your case, call for your free consultation today!