In a divorce a spouse may be motivated to spend marital funds so there is nothing left for the other spouse. Consequently, a divorce judge must preserve the marital estate so that it can be distributed equitably. A common method for preserving a marital estate is through an injunction.
An injunction is defined as a court order “requiring someone to do or not do something.” To preserve the marital estate a judge usually orders funds “frozen” so they can’t be spent. Additionally, a court could order one spouse to return funds which were withdrawn or spent.
In order order to obtain an injunction, one spouse usually files a Petition for Temporary Restraining Order (TRO). A TRO is an initial injunction that is effective for a short period of time. A Petition for TRO is usually done as an emergency, with or without notice to the other spouse. Notice is not required if irreparable injury would result in the time period of the notice. An evidentiary hearing is not required. The purpose is to provide temporary relief until a full hearing can be held. Consequently, a hearing for a preliminary or permanent injunction must be held shortly after the issuance of the TRO.
A common argument for issuance of an injunction is that one spouse often has a monopoly of knowledge and control of the financial estate and, therefore, funds could be spent without the knowledge of the other spouse. Additionally, if one spouse claims the funds are non-marital, another argument is that the non –marital estate cannot be determined until a final adjudication of the case and therefore all funds which may be marital need to be protected.
The Botti Law Firm, P.C. has been practicing family law for nearly 50 years in DuPage and Cook County. Please contact one of our attorneys at (630)573-8585 if you have any questions or would like to schedule a free consultation.
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The Botti Law Firm, P.C., conveniently located in Oak Brook and Wheaton, is a full service law firm that offers comprehensive legal representation to individuals, families, businesses and professionals from the Chicago area, including Cook, Kane, DuPage, Lake, Will and Kendall Counties, to the rest of the United States. Our experienced trial attorneys are dedicated to obtaining successful results for our clients, in both state and federal courts.
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