Standing Order and Temporary Restraining Orders
Often times, when filing an Original Petition for Divorce or Custody case, tensions are high. At the inception of a case, the Courts are immediately interested in taking steps to preserve essentially the status quo and prohibit parties from taking certain actions that may cause significant harm to their estate, the children, or cause needless litigation and expense.
These Orders are known as “Temporary Restraining Orders” (“TRO”) and eventually become what are known as “Temporary Injunctions”. The authority for TRO’s (Temporary Restraining Orders), are found in Chapter 6 and 105 of the Texas Family Code. You can see two detailed articles on the blogs portion of the website.
According to the Texas Family Code, a Temporary Restraining Order is expressly for the purpose of preservation of property, the protection of a party, or the protection of a child who is the subject of the case. A TRO essentially is designed to prohibit or restrain a party from engaging a specific act.
At the inception of a case, TRO’s are presented “ex-parte”, meaning they are presented to a court without notifying the other party and, if seeking unique or special kinds of relief, on the basis of a party affidavit.
As a result, a spouse or party to a divorce or custody suit is often surprised when served with the Original Petition, that a Court has already issued a “secret” Order in the case. However, more recently and particularly in Travis County, some judges require the Atty upon presenting an Ex Parte TRO to provide the contact information for the other spouse and the Court will call contact that party and allow them to be present and present their own side of the situation.
Travis County Standing Order Amended December 13th, 2019 and Effective January 1st, 2020 Travis County
Because TRO’s historically were very routine at the inception of a case, attorneys in family law cases over time developed a set of “standard prohibitions” that were consistently presented to the Courts. And, because these by their nature were required to be presented “ex-parte” (i.e. without notice to the other spouse to be present), these requests consumed valuable court time for matters that were by and large very routine and standard.
As a result, in 2005 but amended in December 2019, the Travis County District Courts put into effect the “Travis County Standing Orders” which now apply to all family law cases filed in Travis County beginning January 1st, 2020.
In short, the Travis County District Judges adopted many of these same standard terms for restraining orders historically presented to the Court and incorporated them into the standing order.
Effective January 1, 2020 The Travis County Standing Orders Apply in Every Case, Whether A Party Requests It or Not
Prior to the adoption of the Travis County Standing Orders, attorneys were required to spend time and their client’s money obtaining this basic relief by appearing in front of the judge in the applicable court in Travis County and ask the court to approve a Temporary Restraining Order.
However, instead, the Travis County County Standing Order now effectively substitutes for that process and serves as a “standing” injunctive order, applying in every divorce and custody case that is filed in Travis County, whether a party requests the standing order or not.
Very Important Difference with Travis County Standing Orders from Other Counties
It is important to note that the Travis County Standing Order applies in every child custody matter, whether an original suit or a modification suit because in some counties the standing orders specifically do not apply to modifications of existing child custody orders such as Williamson County.
Travis County Standing Orders Explained
These standing orders control many aspects of the parties finances, children, and property upon filing a case for Divorce and/or Custody and it is very important, if not critical, for you to read and understand their terms and carefully review them with your attorney at the inception of your case. And, for the most part, these standing orders are self explanatory.
The first paragraph of the Travis County Standing Orders states as follows:
“This is an Order of the Travis County District Courts. THe purpose of this Order is to protect the parties and their children adn to preserve the parties’ property while a divorce case or suit affecting the parent-child relationship (SAPCR) is pending before the Court.
This Order was not requested by any party.
THIS ORDER MAY BE ENFORCEABLE BY CONTEMPT.”
Standing Order Takes Effect Immediately Upon filing
Upon filing, a copy of the standing order is attached to the original petition for divorce or the custody suit, as applicable, and takes effect immediately unless modified by the Court (or the parties by written agreement, signed, and filed with the Court).
Paragraph 1.3, on page 1 of the standing order states as follows:
“This Order takes effect (starts) when an original petition is filed in a divorce case or SAPCR. This Order remains in full force and effect as a temporary restraining order for fourteen days after the original petition is filed. If no party contests this order by presenting evidence at a hearing on or before fourteenth day after the original petition is filed, this order shall continue in full force and effect as a temporary injunction until further order of the Court.
This Order terminates (ends) when the Court signs a final order or the case is dismissed.”
Accordingly, it is important to know that the Order, as is, automatically becomes a “Temporary Injunction” after 14 days and thereafter remains in effect as a temporary order while the case is pending, unless a party files a request with the court and presents evidence why the standing order should be modified in some respect.
Provided, however, upon final judgment when your case is concluded or if the case is dismissed entirely, the standing order is no longer effective unless incorporated into the final judgment.
Effect of A Prior Temporary or Final Order or Protective Order on Standing Order, Protective Order Prevails
However, in the event the court has previously entered a protective order at the time of the filing of the divorce and/or the original custody suit and the terms of the protective in some way conflicts with the terms of the standing order, section 8 provides that the terms of the protective order prevail.
Paragraph 1.2, on page 1 of the standing order states as follows:
“If any part of this Order conflicts with any part of an active order, including a protective order, Child Protective Services order, or a temporary or final order in a divorce case or SAPCR, then the parties must obey that part of the active court order.”
Accordingly, if there exists a prior temporary or final order and the terms of that order conflicts with the terms of the Travis County Standing Orders, the terms of the prior temporary, final or protective order prevail and control.
Thus, upon being served with an original petition for divorce or a custody matter where there exists prior final orders, temporary orders. Or a protective order or other court order that affects your case it is very important to consult an experienced family law attorney to understand the terms of the orders and how they pair with the Travis County Standing Orders.
Standing Order Sets Rules on Dealing with Spouse, Children, and Property
The standing order sets the rules with how spouses must deal with each other, their children, and their property. The standing order calls for the preservation of property, the preservation of business and personal records, and the continued maintenance of insurance coverage.
At heart, the idea is to essentially preserve the “status quo” of the parties and that of children and to provide the least amount of disruption possible, until the courts can hear the evidence, understand the circumstances of the parties and that of their children, and make a carefully determined decision based on the testimony of the parties and the circumstances.
The Travis County Standing Order contains primarily 4 sections, and in summary the most important or significant provisions are as follows (note this is only a summary, to review the entire Order click here):
2.3 Do NOT disrupt or withdraw the child from the school or daycare facility where the child is presently enrolled unless:
(a) all parties agree in writing to the change,
(b) the Court orders the change;
(c) an active court order gives you the exclusive right to make decisions about the child’s education, or
(d) an active court order gives you the exclusive right to designate the child’s primary residence and the withdrawal is related to designating a new primary residence for the child.
3.5 Do NOT access any other party’s email account, financial account, social media account, or any other electronic account;
3.6 Do NOT illegally or intercept or record any other party’s electronic communications;
4.1 Orders about Property and Use of Money During Divorce Cases
(a) Do NOT destroy, remove, conceal, encumber, or otherwise harm or reduce the value of the property of one or both spouses;
(b) Do NOT hide property from your spouse. Do NOT misrepresent or refuse to disclose to your spouse or the Court, on proper request, the existence, amount or location of any property of one or both spouses.
(e) Do NOT incur any debt, other than legal expenses in connection with this case, unless the debt is specifically authorized by this order.
(f) Do NOT withdraw or transfer money from any financial institution for any purpose, except as specifically authorized by this order;
(g) Do NOT spend any cash in either spouse’s possession or subject to either spouse’s control for any purpose, except as specifically authorized by this order;
(h) Do NOT withdraw or borrow from any retirement, profit-sharing, pension, death or other employee benefit plan or employee savings plan or from any individual retirement account or Keogh account, except as specifically authorized by this order;
(i) Do NOT take any action to terminate or limit credit or charge cards in your spouse’s name or possession or lines of credit in your spouse’s name.
(j) Do NOT cancel or change utilities or contractual services in any way (water, electricity, gas, telephone, internet and cable television services) and (security, delivery, pest control, landscaping, or yard maintenance contractual services).
(k) Do NOT exclude your spouse from the residence you and your spouse currently share or have shared within the 30 days before the original petition for divorce was filed in this case.
4.3 Orders about Insurance in Divorce Cases
(b) Do NOT change or alter in any way the beneficiary designation on any life insurance on the life of either spouse or any child who is the subject of this case;
(c) do NOT cancel or alter in any way the casualty, automobile, or health insurance insuring you, your spouse or any child who is the subject of this case or any property owned by or in the possession of you, your spouse or any child who is the subject of this case.
However, these prohibitions contained within the Travis County Standing Order are not absolute. This is a very common misunderstanding among parties who have just been served, believing they are absolutely prohibited from withdrawing funds or taking certain actions with their financial accounts, their children, or specifically in regard to their business or occupation.
If you are a party to a divorce matter, then you will need to go to page 6 and pay particular attention to section 4.4 of the Travis County Standing Order, you will see a provision styled “Specific Authorizations In Divorce Case”.
There are four seprate exceptions or authorizations within the order for which the parties may incur debt or otherwise, in a divorce matter for which the parties may incur debt or spend marital funds which are:
(a) Engage in acts reasonable and necessary to the conduct of that spouse’s usual business and occupation;
(b) Spend and incur debt for reasonable attorney’s fees and expenses in connection with this case.
(c) Spend and incur debt for reasonable and necessary living expenses for food, clothing, shelter, transportation, school, and medical care including reasonable and necessary expenses for minor children.
(d) Withdraw money from financial institution accounts only for the purposes authorized by this order.
Carefully Consult an Attorney
Actions taken in violation of the Standing Orders are potentially subject to contempt and a party can be sanctioned, potentially sentenced to county jail, and minimally required to pay attorneys fees.
Thus, while many of these provisions are self-explanatory, it is very important that you carefully review the standing order with your attorney, ask questions, and become informed.
If you have minor children and the Standing Order applies to your particular case and you are changing schools, childcare, or moving to a different residence while a case is pending you need to very carefully consult with your attorney as the Courts take these actions in particular, as they relate to children, very seriously.
Obtaining a Copy of the Travis County Standing Order
All the issues dealt with in the Standing Order are part of the general rules and procedures for Travis County.
to discuss your needs.