§ 40-4-126 — Automatic Economic Restraining Order

40-4-126 . Automatic economic restraining order. (1) On the filing of a petition for declaration of invalidity of marriage, a petition for dissolution of marriage, or a petition for legal separation, the clerk of the district court shall issue a summons and shall include with the summons an automatic economic restraining order that provides as follows:
"AUTOMATIC ECONOMIC RESTRAINING ORDER
It is hereby ordered:
(1) The parties are restrained from transferring, encumbering, concealing, or in any way disposing of, without the written consent of the other party or an order of the court, any marital property, except:
(a) for expenses necessary to reasonably maintain the marital standard of living or for the necessities of life, such as food, clothing, shelter, necessary health care expenses, transportation to and from work, and child care, taking into consideration additional living expenses arising out of a party obtaining a second household and current available income;
(b) in the customary and usual course of operating an existing business; or
(c) for the purpose of paying a reasonable amount for professional fees and costs relating to a proceeding under Title 40, chapter 1, part 4, Title 40, chapter 4, or Title 40, chapter 15.
(2) Each party shall file a notice with the court of any proposed extraordinary expenditure, proposed revocation of a nonprobate transfer, or proposed elimination of a right of survivorship to property at least 14 days before the action is taken.
(a) The notice must include:
(i) the proposed action and when the action is intended to occur;
(ii) how the proposed action may impact the marital estate; and
(iii) why the proposed action is necessary at that time.
(b) The notice is not sufficient unless the notice contains the following statement: "The moving party's proposed action will be permitted without further proceedings or order of the court unless within 14 days of the date of filing of the notice you file with the court and serve on all persons entitled to notice a response objecting to the proposed action, which states the reasons for your objection."
(c) If the other party files an objection to the proposed action before the expiration of the 14-day period, the party proposing to take the action is prohibited from taking the proposed action until the court rules on the proposed action.
(d) The burden of justifying the proposed action is on the party proposing the action. The court may award reasonable attorney fees if a party makes an unreasonable request for or an unreasonable objection to the proposed action.
(e) A "nonprobate transfer" means an instrument, other than a will, that makes a transfer of property on death, including a revocable trust, a pay-on-death account in a financial institution, a transfer on death registration of personal property, or a revocable transfer on death deed.
(3) The parties are restrained from:
(a) canceling jointly held credit cards or terminating signatory authority of the other party on a credit card;
(b) incurring unreasonable debt, including but not limited to further borrowing against any credit line secured by the family residence, further encumbrancing of any assets, or unreasonably using credit cards or cash advances against credit cards, except as provided for in subsections (1)(a) through (1)(c) or subsection (2);
(c) except as allowed by subsections (1)(a) through (1)(c) or subsection (2), making any withdrawal for any purpose or borrowing from any deferred compensation, retirement, profit-sharing, pension, death, or other employee benefit plan or employee savings plan or from any individual retirement account or Keogh account;
(d) except as allowed by subsections (1)(a) through (1)(c) or subsection (2), withdrawing or borrowing in any manner all or any part of the cash surrender value of any life insurance policies on either party or any of their children;
(e) changing or in any manner altering the beneficiary designation on any life insurance policies on either party or their children or changing or in any manner altering the beneficiary on any other account or asset;
(f) canceling, altering, or allowing to lapse any existing property, life, automobile, or health insurance policies insuring the parties' or children's property or persons;
(g) negotiating any instrument, check, draft, income tax refund, insurance payment, or dividends payable jointly to the parties or individually to the other party without the personal signature or prior written consent of the other party;
(h) opening, diverting, or withholding mail, e-mail, or other electronic communications addressed to the other party, except a party may open mail, e-mail, or other electronic communications addressed to both parties or submit a notice of change of the party's individual mail, e-mail, or other electronic address; and
(i) without objectively reasonable justification, intentionally or knowingly damaging or destroying the property of the parties or of either party during the pendency of this action, specifically including but not limited to any electronically stored materials, electronic communications, or financial records, without order of the court or written consent of the other party.
(4) Unless otherwise ordered by the court, a party is not restrained from:
(a) creating, modifying, or revoking a will;
(b) revoking or changing a power of attorney; or
(c) creating an unfunded revocable or irrevocable trust.
(5) This order does not adversely affect the rights, title, or interest of a purchaser, encumbrancer, or lessee for value if the purchaser, encumbrancer, or lessee does not have actual knowledge of this order.
(6) The court may expand, limit, modify, or revoke this order, and nothing prevents either party from requesting such relief. Furthermore, the parties, with joint agreement, may waive in writing some or all of the provisions of this order.
(7) The parties shall serve preliminary financial disclosures within 60 days of service of the petition for dissolution, declaration of invalidity of marriage, or legal separation pursuant to 40-4-252 .
(8) This order is binding on the petitioner on filing of the petition, and this order is binding on the respondent on service of the petition.
(9) In issuing any temporary orders or in a final decree, the court may consider any action taken by the petitioner within a reasonable time prior to filing of the petition that would otherwise have constituted a violation of this order had this order been issued at the time.
(10) Except as otherwise ordered by the court, this order is dissolved on dismissal of the action or granting of the declaration of invalidity, dissolution of marriage, legal separation, or other final order.
(11) Failure to follow this automatic economic restraining order is subject to enforcement by the court, on a motion to the court. The court may issue any appropriate enforcement order as set forth in 40-4-126 (4), including, if appropriate, sanctions and all remedies for contempt of court."
(2) An automatic economic restraining order entered pursuant to this section, unless otherwise ordered by the court, is dissolved upon dismissal of the action or granting of the petition for declaration of invalidity, dissolution of marriage, legal separation, or other final order.
(3) Nothing in this section precludes a party from applying to the court for an order to expand, limit, modify, or revoke the automatic economic restraining order.
(4) If a party fails to comply with the automatic economic restraining order, the other party may move the court to grant an appropriate order, including, if appropriate, sanctions and all remedies for contempt of court.

Legislative History

En. Sec. 1, Ch. 131, L. 2021.