How Do I Obtain Temporary Emergency Orders in a California Divorce to Freeze Assets?
A spouse may not take possession and control of important marital property, or cut off the funds and resources you shared and enjoyed together during the marriage. A spouse may not deny access to community financial information or accounts. For example, if a spouse transfers community property money from joint accounts, blocks access to all funds or appears to be mismanaging marital assets, whether it is business or real property, your attorney should immediately act. If there is a risk that a spouse is hiding assets or a risk that marital assets will be spent or transferred before a court order, your attorney should take immediate action.
What are your Legal Remedies to Preserve the Status Quo of Marriage Pending the Resolution of a California Divorce?
Once the Petition for Dissolution and the Summons are served, both parties are automatically subject to temporary restraining orders (ATROs). The ATROs are in effect until the case is resolved. These mutual orders are listed on the back of the Summons and, among other things, prohibit any disposition, encumbrance or sale of the marital assets without the other party’s consent.
A spouse in California may obtain a temporary emergency order (preliminary injunction) from the court to protect community assets. Pursuant to Cal. Fam. Code §2045(a), the court may issue an order restraining any person from transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community or separate.
A preliminary injunction may be issued against any party where an act during litigation would produce great or irreparable injury, pecuniary relief would not afford adequate relief, or it would be extremely difficult to ascertain the amount of compensation that would afford adequate relief. (Cal. Code of Civ. Proc. §526 (a)(2),(4),(5); See also Planned Parenthood Golden Gate v. Garibaldi (2003).) Such preliminary injunction preserves the status quo pending final resolution of the merits in an action. (See Lenard v. Edmonds (1957) holding that “obviously, it was reasonably necessary and fair to both sides to maintain the status quo pending the outcome of the litigation. Otherwise, appellant could have deliberately stripped himself of all assets and made it impossible for him to pay any judgment that might be secured.”)
The inability to pay a judgment is a factor to consider when deciding whether mere monetary loss constitutes irreparable injury. (See West Coast Constr. Co. v. Oceano Sanitary Dist. (1971).) The court will evaluate two interrelated factors when deciding whether to issue a preliminary injunction:
The first is the likelihood that the plaintiff will prevail on the merits at trial. (Cohen v. Board of Supervisors (1985).) Plaintiff must establish a “reasonable probability of success on the merits." (Jessen v. Keystone Sav. & Loan Ass'n (1983).) That means at least "some possibility" of success. (Costa Mesa City Employees Assn. v. City of Costa Mesa (2012).)
The second is the interim harm that the plaintiff is likely to sustain if the injunction [is] denied as compared to the harm that the defendant is likely to suffer if the preliminary injunction [is] issued." (Cohen v. Board of Supervisors (1985).)
Accordingly, if the court finds there is a need to preserve the status quo pending resolution and that harm will result if the orders are not granted, the court will likely grant the temporary injunction pending hearing on the issue. The court has the power to order the account freeze or placing the funds into a trust account, etc.
What is the Notice Requirement for a Preliminary Injunction?
Cal. Code of Civil Procedure §527(c) provides for granting of a temporary restraining order without notice where “it appears from facts shown by affidavit… that great or irreparable injury will result to applicant before the matter can be heard on notice,” and where the applicant or applicant’s attorney certifies that for the reasons specified the applicant should not be required to inform the opposing party or the opposing party’s attorney.”
Experienced attorneys at Livingstone Law, APC can help you to preserve the marital status quo and protect the community assets in your divorce to ensure just and equitable division of the property. We have a successful track record in helping clients obtain favorable results. Contact Vera or Elena today for a free consultation.
