A very common thought when the divorce process begins is: what if my spouse empties or our bank account? Different states have different statues regarding what restraints are “automatic” when a divorce litigation ensues. Some have very ridged and extensive “automatic orders” or “automatic temporary restraining orders” (a/k/a/ “ATRO’s”), while others do not.
Illinois does have an automatic stay for: (1) physically abusing, harassing, intimidating, striking, or interfering with the personal liberty of the other spouse or the minor children; and (2) removing minor children from the State of Illinois for more than 14 days; however, there are no automatic financial restraining orders—they need to be requested by one party to the court. 750 ILCS 5/501(a)(2).
In addition to other temporary relief that should be requested, for financial protection, a party to a divorce must request temporary injunctive relief from the court. This would prohibit the other spouse from changing beneficiaries on accounts, closing accounts, transferring or selling marital property, or incurring marital debt. These are sometimes considered to fall under the catch-all provision of 750 ILCS 5/501(a)(2)(iv). I want to point out that an exception is made for day-to-day expenses that are necessary for a party to maintain living such as reasonable food, gas, electricity, etc. See In re: Marriage of DeRosa,115 Ill.App.3d 774 (1st Dist., 1983).
A request for a financial restraining order should include a “factual basis” in the form of an affidavit. Furthermore, a court may order a temporary restraining order without the requirement that notice be given to the other party if the court “finds, on the basis of the moving affidavit or other evidence, that irreparable injury will result to the moving party if no order is issued until the time for responding has elapsed.” 750 ILCS 5/501(b); see also Wilson v. Wilson, 160 Ill. Ec. 752 (1st Dist. 1991) (holding that a temporary restraining order aims to prevent a threatened wrong pending the full hearing on the merits of a case.)
Asking for injunctive relief requires the moving party to allege certain factors, so speaking with an attorney about your specific facts and circumstances will ensure that all of your assets are protected during your divorce. We can additionally discuss the qualities, specific to your marriage and relationship, that the court will consider when assessing whether there is a real threat to assets and/or property.
"This blog is for informational purposes only and is not intended to create an attorney-client relationship. It is recommended that you speak to an attorney licensed in your jurisdiction before relying on the information in this blog."