Rule 24: Ex Parte Temporary Restraining Orders

(A) Mutual Restraining Orders.

(1) In all cases, upon the filing of the initial complaint for divorce, annulment or legal separation, both spouses shall be restrained from:

a. Obstructing or interfering with the other spouse’s parenting time or communication with the minor child(ren), or concealing the whereabouts of the minor child(ren) from the other spouse, except where a protection order has been issued.

b. Disparaging, denigrating or otherwise speaking ill of the other spouse to or in the presence or hearing of the minor child(ren).

c. Using the internet, social networking sites, or mobile applications accessible by a computer or mobile electronic devices for the purpose of posting, commenting, sharing, or disseminating electronically written words, images, and/or videos which threaten, harass, or defame and/or slander the other spouse and which can be viewed by the other spouse, children of the other spouse, any users of the internet, and/or the general public.

d. Selling, removing, transferring, encumbering, pledging, damaging, hiding, concealing, assigning or disposing of any and all property, real or personal, owned by both spouses, or either spouse, or a child, including household goods, vehicles, and the personal property of each, without the prior written consent of the spouse or the court.

e. Voluntarily changing the terms or beneficiary of, terminating coverage of, cashing in, borrowing against, encumbering, transferring, canceling or failing to renew any type of insurance, including health, automobile, life, disability, home or fire insurance that provides coverage for a spouse or child(ren) of the parties.

f. Voluntarily liquidating, encumbering, borrowing against, cashing in, changing the beneficiary, terms or conditions of any retirement or pension plan or program that provides any benefit to a spouse or child(ren) of the parties and/or of either or both spouses.

g. Withdrawing funds from joint or individual bank, savings and loan association, and/or credit union accounts, retirement or pension funds (including IRA, Keogh, deferred compensation, or 401(k) accounts), trust brokerage houses or other financial institution accounts, except if such accounts are business accounts; provided however, that no stock broker is restrained from buying, selling or otherwise dealing with any stock, bond or other investment for the account of either spouse or both spouses. THE MUTUAL RESTRAINING ORDER DOES NOT RESTRAIN MONIES RECEIVED IN THE FORM OF WAGES.

h. Removing from the marital residence tangible personal property, other than a spouse’s own clothing and personal effects or tools, equipment, books and papers incidental to the conduct of his/her trade, business or profession.

i. Incurring debt on existing lines of credit or credit cards in the name of the other spouse or in the spouses’ joint names, unless by prior written agreement of the spouses or order of court.

(2) These mutual restraining orders will be issued by the Clerk of Courts on DR FORM 1.00 at the time a complaint is filed. Plaintiff shall be deemed served with the Mutual Restraining Orders upon the filing of the complaint. The Mutual Restraining Orders shall be served on the defendant-spouse with the summons.

(3) The Mutual Restraining Orders shall remain in effect during the pendency of the case unless modified by the court.

(B) Ex Parte Temporary Restraining Orders.

(1) How Requested. A request for ex parte temporary restraining orders not covered by the Court’s Mutual Restraining Orders above may be made pursuant to the Ex Parte Temporary Restraining Order Guidelines, as worded in DR FORM 2.00.

a. The request may be contained in the prayer of a complaint, counterclaim or answer in an action for divorce, annulment or legal separation, or by separate motion.

b. The request must be supported by an affidavit of the party seeking the order, which states with specificity the facts to support the request.

c. The person or entity to be restrained must be a party to the action.

d. Ex parte restraining orders shall not duplicate any mutual restraining orders issued pursuant to section (A) of this rule.

(2) Procedure.

a. A pleading or motion requesting an ex parte temporary restraining order, along with a supporting affidavit, shall first be filed with the Clerk of Courts.

b. The time-stamped pleading or motion and a proposed judgment entry granting the relief requested shall be presented to the Law Department for review and approval prior to being submitted to the assigned judge.

c. If the request for restraining orders involves child-related issues, a time-stamped copy of the Parenting Proceeding Affidavit must be presented to the Law Department at the same time as the pleading or motion. If the Parenting Proceeding Affidavit is not presented in accordance with this rule, any restraining order that involves child-related issues will not be approved.

d. If a request for an ex parte temporary restraining order is not fully supported by the affidavit, or the order requested is outside the Ex Parte Temporary Restraining Order Guidelines as worded in DR FORM 2.00, the order will not be approved by the Law Department.

e. If a third party is to be restrained any requested restraining order must be within either the Ex Parte Temporary Restraining Order Guidelines as worded in DR FORM 2.00 or the Mutual Restraining Orders as worded in DR FORM 1.00.

f. Each restraining order against a third party shall be separately stated under that third party's name in the proposed judgment entry.

g. Once the proposed judgment entry is approved by the Law Department, it shall be presented for signature to the assigned judge or, if the assigned judge is unavailable, to the Duty Judge pursuant to Rule 2(B)(3) of these rules.

h. The signed judgment entry shall be returned to the Clerk of Courts to be journalized, and the pleading or motion and judgment entry shall be served on all opposing parties or their counsel.

(3) Post-Decree Orders. Ex parte temporary restraining orders may be granted in post-decree motion proceedings if relevant to the relief sought in an underlying post-decree motion and within the Ex Parte Temporary Restraining Order Guidelines as worded in DR-FORM 2.00 or the Mutual Restraining Orders as worded in DR-FORM 1.00. The underlying motion must be filed prior to the Motion for Ex Parte Temporary Restraining Orders. A time-stamped copy of the underlying motion must be presented with the motion for the ex parte temporary restraining orders before such orders will be approved by the Law Department. Requests for post-decree temporary restraining orders must be supported by an affidavit of the party seeking the order, which states with specificity the facts to support the request.

(C) Ex Parte Motion to Prevent the Return of a Spouse to Reside in the Marital Residence.

(1) When Granted. An ex parte temporary restraining order may be obtained to prevent a spouse from returning to the marital residence to reside, if such spouse no longer resides in the marital residence and has been voluntarily absent from there for more than 30 continuous days immediately prior to execution of the affidavit required in division (C)(3) of this rule.

(2) Procedure. A request for a restraining order to prevent the return of a spouse to reside in the marital residence shall be by separate motion not combined with other requests for restraining orders. The motion shall be filed in accordance with the procedure in division (B)(2) of this rule. A proposed judgment entry shall be submitted with the motion.

(3) Content of Motion and Affidavit. A motion seeking an ex parte temporary restraining order to prevent a spouse from returning to the marital residence to reside shall state with specificity the reasons for the motion and shall be supported by an affidavit of the movant which states all of the following:

a. The date on which the absent spouse left the marital residence;

b. The number of days or months of continuous absence immediately preceding execution of the affidavit;

c. That the spouse has voluntarily left the residence with the intent to no longer reside there; and,

d. That the movant has resided in the marital residence during the entire 30 day period immediately preceding execution of the affidavit.

(D) Disclosure of Other Orders. All requests for ex parte orders in a pleading or motion shall disclose any other orders issued by this Court, or by any other Court, which are currently in effect and relevant to the relief requested in the motion. A copy of any journalized order shall be attached to the pleading or motion.

(E) Modifying or Dissolving Ex Parte Temporary Restraining Order. Any motion to modify and/or dissolve an ex parte temporary restraining order shall be supported by an affidavit of the moving party setting forth the specific facts which support the motion. In the absence of an agreement of the parties as to the terms and conditions for modifying and/or dissolving such orders, the matter shall be set for a hearing. A motion to dissolve a restraining order preventing a spouse from returning to the marital residence issued pursuant to division (C) of this rule shall be set for hearing within 14 days of the date the motion to dissolve is filed.

(Effective July 1, 1991. Amended effective September 30, 1991; January 1, 1999; May 1, 2011; April 1, 2016; November 20, 2018.)

Appendices

A. Mutual Restraining Order - DR-FORM 1.00
B. Ex Parte Temporary Restraining Order Guidelines - DR FORM 2.00