One of the more common concerns I encounter as a Divorce attorney in Arizona is with new or prospective divorce clients is a real fear that their soon to be ex-spouse will dispose of community assets before the court has a chance to divide the property. Arizona is a community property state. In general, this means that any asset that you and your spouse accumulate during the marriage (i.e., house, retirement account, savings account, etc.) is considered community property and each spouse is entitled to a 1/2 interest in the property. In some cases, particularly those involving long marriages, the community assets can be substantial and it may take quite some time to determine how the assets should be equitably divided. In the meantime, what if anything can be done to prevent one spouse from selling or taking community assets before your divorce case can be resolved either by settlement or by the family law court?
THE PRELIMINARY INJUNCTION
When you or your Mesa divorce attorney file your Arizona divorce case, the Clerk of the Court is required to issue a preliminary injunction that prohibits both parties from taking certain actions while the divorce is still pending. An injunction is a court order. This means that if either party does anything forbidden by the Preliminary Injunction, he or she is violating a court order and may be subject to sanctions from the family law judge. One of the primary purposes behind issuing this automatic preliminary injunction is to prevent either spouse from disposing of community assets until either the parties agree in writing how to divide or dispose of an asset, or the court issues an order regarding the disposition of the asset.
WHAT DOES THE PRELIMINARY INJUNCTION PROHIBIT?
The Preliminary Injunction, which can be found in A.R.S. 25-315(A)becomes effective as soon as it is issued by the Clerk of the Court and is served on the non-filing spouse. The injunction includes specific orders applicable to both parties including the following:
1. You may not hide earnings or community property from your spouse;
2. You may not take out a loan on any community property;
3. 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 the necessities of life, such as food, shelter, or clothing, or court fees and attorney fees associated with this action. If this applies, you should see a lawyer for help, AND
4. You may not harass or bother your spouse or children, AND
5. You may not physically abuse or threaten your spouse or the children, AND
6. You may not take the minor children, common to your marriage, of the State of Arizona for many reasons, without a written agreement between you and your spouse or a Court Order, before you the minor out of the State.
7. You may 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.
WHAT IF MY SPOUSE VIOLATES THE PRELIMINARY INJUNCTION?
If either spouse violates the Preliminary Injunction he or she may be found in contempt of a court order. In my family law practice, this comes up most often when one spouse unilaterally decides he or she wants to sell some piece of property or tries to hide money. Keep in mind, that if both parties agree in writing to do something with a community asset (for example, if both parties agree to split the proceeds in a savings account so each has some money to live on while the divorce is pending) it is not a violation of the Preliminary Injunction. Likewise, if one party wants to do something with an asset and cannot get the other party to agree, he or she is free to file a motion with the family court judge requesting that the court order that the asset is divided or sold or whatever the party is seeking. After the other spouse files his or her response to the request, the family court judge will decide to either allow the party to sell or divide the asset or to wait until the case is decided at trial.
Where most people get in trouble when it comes to the Preliminary Injunctions is when they something with a community asset without the permission of the other spouse or without a court order. When a party unilaterally disposes of a community asset, he or she may be in direct violation of the Preliminary Injunction. A couple of years ago I had a case where the parties had a substantial 401K through the husband’s employer. The 401K was a community asset that needed to be divided equally. The soon-to-be ex-husband unilaterally decided he was going to use the 401K funds for his own purposes, including my client’s half of the funds. When we found out about the husband’s actions, we filed a Motion for Contempt with the family court judge. After hearing the evidence, the family court judge found that the husband violated the preliminary injunction and, as a sanction for violating the Preliminary Injunction, ordered that he pay my client’s attorney fees. The judge also entered a judgment against the husband for my client’s (the divorce attorney) half of the funds.
Make no mistake; Arizona family law court judges take the preliminary injunction very seriously. The idea behind the injunction is to force the parties to play fair and to prevent one party from disposing of community assets for his or her own purposes. You will note that the injunction also applies to conduct involving minor children. A violation of any of the restrictions enumerated in the Preliminary Injunction can be expensive and can result in significant sanctions from the family law judge.
If you find yourself involved in an Arizona divorce, make sure you DUI attorney mesa az before doing anything with any community assets or taking actions involving minor children (such as taking them out of state, etc.). It is never a good idea to take things into your own hands without the written permission from either your spouse or the family law court. Failure to follow the orders contained in the Preliminary Injunction can be costly and damage your credibility with the family law judge.