I am often asked about what the Rule 411 Automatic Restraining Order means, and how it will affect a client's divorce. The most common concerns relating to this subject go something like this...
- "...but how will I pay my bills?"
- "How will I be able to pay my attorney if my bank accounts are frozen?"
- "Am I going to starve?" (no, you are not going to starve because of Rule 411)
- "I was planning on buying a summer house on the cape, does this mean I cannot do that?"
For starters, don't buy the summer house just yet. Regarding the rest, not to worry. Read on!
What is an Automatic Restraining Order in Massachusetts?
Spouses who have filed for divorce or who are considering divorce in Massachusetts should be mindful that any divorce case in the state comes with an automatic restraining order. This automatic restraining order goes into effect for the Plaintiff-spouse when the divorce case is filed, and it goes into effect for the Defendant-spouse when the divorce complaint is served. Until the parties consent or the Court orders otherwise, the automatic restraining order remains in place until the divorce case is completed.
When does it take effect?
If you are the Plaintiff (the plaintiff is the person who files initially), the Rule 411 Automatic Restraining Order takes effect as soon as the case is filed, regardless of whether you filed the action yourself or through an attorney. If you are the Defendant, the Rule 411 Automatic Restraining Order takes effect when you are served with the Complaint for Divorce.
So, what can’t you do?
Once the Automatic Restraining Order is in effect, you are barred from doing the following, as per the statute:
“Neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of any property, real or personal, belonging to or acquired by, either party..."
And as with most rules, there are reasonable exceptions...
"except: a. as required for reasonable expenses of living; b. in the ordinary and usual course of business; c. in the ordinary and usual course of investing; d. for payment of reasonable attorney's fees and costs in connection with the action; e. written agreement of both parties; f. by order of the court"
The Statute prohibits parties from incurring debt in each others' names:
"Neither party shall incur any further debts that would burden the credit of the other party, including but not limited to further borrowing against any credit line secured by the marital residence or unreasonably using credit cards or cash advances against credit or bank cards."
And prohibits parties from canceling any medical insurance, life insurance, car insurance or disability insurance policy:
"Neither party shall directly or indirectly change the beneficiary of any life insurance policy, pension or retirement plan, or pension or retirement investment account, except with the written consent of the other party or by order of the court.
Neither party shall directly or indirectly cause the other party or the minor child(ren) to be removed from coverage under an existing insurance policy, including medical, dental, life, automobile, and disability insurance. The parties shall maintain all insurance coverage in full force and effect.”
You can read the fine print here.
But wait...What does the above mean, you ask??
To simplify things, per the rule, you are barred from dissipating assets- you can’t sell them, you can’t hide them, you can’t give your brother’s friend’s cousin’s sister your Maserati for safekeeping until after your divorce. But, what if you want to buy that aforementioned beach cottage on the cape? Nope, per the statute, you cannot do that either- no taking on new debt (unless of course, there is an agreement by the parties or a court order).
Back to that "Am I going to starve?" Question
Don’t worry, the only exceptions to the automatic restraining order are your usual expenses and attorneys fees. Any other financial activity that is not routine must be agreed upon between both parties to the divorce, or allowed by a Court Order. So, you can still buy food and you can still pay your mortgage.
Now, to clarify- the Massachusetts Automatic Restraining Order only applies to the parties, not to third parties such as banks. So, you and your soon-to-be ex-spouse must obey the order, but your accounts won’t actually be frozen. Your accounts are still operational because you and your partner require them to cover your daily expenses. Like, as we discussed, buying groceries.
Don’t go canceling your health insurance…
The Massachusetts Rule 411 Automatic Restraining Order also prohibits you or your spouse from making changes to who is covered by health, dental, auto, disability, and liability insurance, etc.
The rule ensures that no one is using money to punish the other party or to hide/waste assets so that they can't be separated in a divorce. If you are considering a certain transaction, buying that sports car, or selling your house without your spouse knowing…. don’t! At least, don’t until you speak with your attorney first. If you aren’t sure whether it is barred by the Automatic Restraining Order, ask your Massachusetts divorce lawyer first!
What if I violate the Automatic Restraining Order?
My best advice is (get ready for it)...
DON'T VIOLATE IT.
A party who violates the Massachusetts Rule 411 Automatic Restraining Order may be subject to sanctions. What are sanctions? The party who breaches the order may be held in contempt and forced to return things to how they were before the breach, as well as pay the other party's legal fees incurred due to the breach.
Credibility Matters in a Divorce Case.
Finally, when making decisions, judges are permitted to consider your actions. The choices you make throughout your case could affect who the judge believes more. And, when the only proof is your word versus your soon-to-be ex-spouse’s word, your credibility matters. One of the most significant considerations in family law cases is retaining integrity in front of the judge. The quickest way to lose credibility in front of a judge is to break court orders!
A Few Other Details Relating to a 1B Contested Divorce
If you are filing or have filed a Contested Divorce action in Massachusetts, you and your partner cannot agree on one or more material provisions of your divorce, such as property division, child custody, or support. You may have pursued other approaches to resolving these issues, such as negotiation or mediation, but you've come to a stalemate, and it’s time to involve the courts. A contested divorce, also known as litigation, is the next step.
How it begins…
In Massachusetts, a Complaint for Divorce is filed in court to start the litigation process. This Complaint explains why you're seeking a divorce and asks the court to give you specific relief, such as a divorce or custody. If at least one of you still lives in the county where you and your spouse last lived together during your marriage, your case must be filed in the probate and family court in that county. If neither of you lives in there, you must file the case in the probate and family court in the county where either of you reside.
The court clerk will issue a summons after your Complaint has been docketed, and the summons and Complaint must be served on your partner by a constable. Please keep in mind that you will not be able to serve your spouse yourself! Your partner has 20 days from the date of service to file an answer or an answer and counterclaim.
Within 45 days of the date of service, you and your spouse must exchange necessary financial disclosures, that include your Rule 401 Massachusetts financial statement. A financial statement is required by the court, but is also important and an overview of your current financial situation that can help determine child support, alimony, division of assets and division of any debt.
What is included in a financial statement?
A financial statement reflects all of your income, expenses, assets, and debt. This statement will be updated as your case proceeds. Think of a financial statement as a "snapshot" of your financial situation, that can be helpful to a judge in gauging the lifestyle enjoyed during your marriage, as well as the lifestyle provided for your kids during your marriage. All of this matters because it provides insight into whether you or your soon to be ex-spouse need financial support from the other. In addition, it helps the judge determine your assets and liabilities, so they may better determine an equitable division of those assets or liabilities.
Julia Rodgers, Esq. is an attorney with Mavrides Law. She understands the unique issues clients face and ensures that they feel comfortable with strategy and process before moving forward and throughout the duration of their case. She focuses her practice on divorce and prenuptial agreements. To read her bio, click here.
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