Understanding the preliminary injunction
In every case, a Preliminary Injunction is issued against both parties. It is a court order that is used to prevent either party from taking certain actions until a final decision is made.
Common Circumstances in Family Law
- Child Custody: A preliminary injunction might be used to prevent one parent from taking a child out of the jurisdiction or from making major decisions about the child’s education or medical care until custody arrangements are resolved.
- Restraining Orders: If there’s a concern about domestic violence or harassment, a preliminary injunction might be issued to keep the alleged abuser away from the victim and their children.
- Property Disputes: In divorce cases, a preliminary injunction could prevent either party from selling or dissipating marital assets until the court decides on the division of property.
Enforcement and Duration
- Enforcement: Violating a preliminary injunction can lead to legal consequences, including contempt of court.
- Duration: The injunction remains in effect until a final decision is made in the case, or until the court modifies or lifts it.
Actions forbidden by the Order
- You may not hide earnings or community property from your spouse.
- You may not take out a loan on the community property.
- You may not sell the community property or give it away to someone, UNLESS you have the written permission of your spouse or written permission from the court. The law allows for situations in which you may need to transfer joint or community property as part of the everyday running of a business, or if the sale of community property is necessary to meet necessities of life, such as food, shelter, or clothing, or court fees and attorney fees associated with this action. If this applies to you, you should see a lawyer for help, AND
- Do not harass or bother your spouse or the children, AND
- Do not physically abuse or threaten your spouse or the children, AND
- Do not take the minor children, common to your marriage, out of the State of Arizona for any reasons, without a written agreement between you and your spouse or a Court Order, before you take the minor children out of the State.
- Do not remove, or cause to be removed, the other party or the minor children of the parties from any existing insurance coverage, including medical, hospital, dental, automobile and disability insurance. Both parties shall maintain all insurance coverage in full force and effect.
If you have any questions whatsoever if a particular action will violate the Preliminary Injunction, please contact your legal team. Violation of the Injunction can result in a finding of contempt which is very serious.
POSSESSION OF LIQUID ASSETS (divorce cases only)
Each individual is entitled to control or possess ½ of your liquid assets, which include cash, money market accounts, certificates of deposit, and stock accounts, but exclude retirement or Individual Retirement Accounts. This privilege does not permit unrestricted spending of these assets, as they remain subject to the Preliminary Injunction. However, you do have the right to control them. Before making any significant expenditures from these funds, consult with your legal team to ensure your actions comply with the law.
TERMINATION OF THE COMMUNITY (divorce cases only)
The “Petition for Dissolution” is the initial paperwork filed to initiate a divorce action. In Arizona, the law stipulates that the community property and debts are terminated upon the service of the Petition. This means that once the Petition is served (either through private process server or if an acceptance of service is signed), the community property rules no longer apply to new debts and assets, even if the divorce itself isn’t finalized yet.
From the moment the Petition is served, any debts incurred by either party are considered their sole responsibility unless the Court decides otherwise. Similarly, each party’s earnings become their separate property. Assets acquired from those earnings are also deemed separate, provided they are kept distinct and identifiable. Therefore, it is crucial to maintain separate bank accounts for your post-service earnings and other income. Note that wages reflected on your paycheck for work performed before the service date do not become your separate income until you receive payment for work done after the service.
To ensure proper “Service of Process,” it is advisable to use a private Process Server. Alternatively, service can be arranged through acceptance of service. After service, the responding party must file a Response to the Petition within 20 days. Failure to do so may result in the Court granting all relief requested in the Petition by default.
