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.
A TRO, by its nature, takes effect almost immediately upon signature by the Court. According to the 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. The way a TRO works is by prohibiting or “restraining” a party from engaging a specific behavior, act, or taking certain action that is prohibited by the TRO. For example, TRO’s are used to prohibit withdrawals from bank accounts, selling or “alienating” property of which the other spouse may have an interest, incurring debt, harassing another party, or from removing a child or un-enrolling a child from school or day care.
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 party is often surprised to find that when they are served with the citation for the Original Petition for Divorce, that a Court has already issued an Order in the case. However, don’t be alarmed and before engaging in any kind of knee-jerk reaction, talk to a competent and experienced family law attorney because this is typically routine and standard at the beginning of a case.
Routine TRO’s, Adopted as Standing Order in 2005 in Travis County
Because TRO’s are routine at the inception of a case, attorneys in family law cases routinely developed a set of standard prohibitions that were always being presented to the Courts. Because they are presented ex-parte, these requests were constantly taking up valuable court time for matters that were by and large very routine and standard in the eyes of the court. As a result, in 2005 the Travis County District Judges adopted that same standard set of restraining orders, known as the “Travis County Standing Order”. Many other jurisdictions around the State of Texas have likewise done the same in adopting their own standing order.
Applies in Every Case, Whether Requested or Not
The Travis County Standing Order is a “standing” injunctive Order that applies in every case that is filed in Travis County that relates to divorce or custody whether a party requests the order or not. Prior to the adoption of the Travis County Standing Order, attorneys were required to spend time and their client’s money obtaining this basic relief by appearing in front of the judge. By imposing this standing order upon filling, Travis County saved parties money and decreased the traffic at uncontested docket.
The first paragraph of the Travis County Standing Orders states as follows:
No party to this lawsuit has requested this order. Rather, this order is a standing order of the Travis County District Courts that applies in every divorce suit and every suit affecting the parent-child relationship filed in Travis County. The District Courts of Travis County have adopted this order because the parties and their children should be protected and their property preserved while the lawsuit is pending before the court.
Takes Effect Immediately Upon filing
Upon filing, a copy of the standing order is attached to the original petition and takes effect immediately unless modified by the Court (or the parties by written agreement, signed, and filed with the Court). It is important to know that the Order, as is, automatically becomes a “Temporary Injunction” after 14 days and remains in effect while the case is pending, unless party comes forward and presents evidence why the standing order should be modified in some respect. Upon final judgment, the standing order is no longer effective unless incorporated into the final judgment.
7.2 of the standing order states as follows:
This order is effective upon the filing of the original petition and shall remain in full force and effect as a temporary restraining order for fourteen days after the date of the filing of the original petition. If no party contests this order by presenting evidence at a hearing on or before fourteen days after the date of the filing of the original petition, this order shall continue in full force and effect as a temporary injunction until further order of the court. This entire order will terminate and will no longer be effective once the court signs a final order.
Effect of Protective Order on Standing Order, Protective Order Prevails
If there a protective order has already been issued and in some way conflicts with the terms of the standing order, section 8 provides that the terms of the protective order prevail. Thus, upon being served with an original petition for divorce or custody that is combined with a protective order, it is very important to consult an experienced family law attorney to understand the terms of the 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. It 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 6 sections, related to the following:
(1) No Disruption of Children;
(2) Conduct of the Parties During the Case;
(3) Preservation of Property and Use of Funds During Divorce Case;
(4) Personal and Business Records in Divorce Case;
(5) Insurance in Divorce Case;
(6) Specific Authorizations in Divorce Case;
The most significant provisions of the standing order, are typically the following, meaning the parties are specifically prohibited from:
(1) removing any children involved in the case from the State of Texas;
(2) disrupting or withdrawing the children from the school or day-care facility where the children are presently enrolled, without the written agreement of both parents or an order of this Court.
(3) hiding the child from the other parent;
(4) changing the child’s residence;
(5) withdrawing the child from school or day-care;
(6) threatening or harassing the other party;
(7) harassing the other party;
(8) incurring indebtedness;
(9) destroying, removing, concealing, selling, transferring, mortgaging, encumbering, or otherwise taking any action which would harm or reduce the value of either party’s separate property or the parties’ community property;
(10) making withdrawals from any checking or savings accounts for ANY purpose other than payment of reasonable living expenses for food, clothing, shelter, transportation, medical care and reasonable attorneys’ fees;
(11) concealing or destroying personal and business records; and
(12) canceling or altering insurance policies.
Carefully Consult an Attorney
Thus if you are planning to travel or reside outside of the State of Texas while your case is pending or plan to or need to enroll them in a different school, you need to very carefully consult with your attorney as the Courts take these actions in particular, as they relate to children, very seriously and you can find yourself being sanctioned by the Court and have to pay fines, costs, or attorney’s fees for the other party or even temporarily losing custody of your children.
Prohibitions Are Not Absolute, Exceptions and Common Misunderstanding
The prohibitions contained within the Travis County Standing Order are not absolute. This is a common misunderstanding among parties who have just been served, believing they are absolutely prohibited from withdrawing funds or taking certain actions with regard to their business or occupation. In this regard, pay particular attention to section 6, in which the parties are specifically authorized to make expenditures or incur indebtedness to pay for reasonable attorney’s fees, reasonable and necessary living expenses (food, clothing, shelter, transportation, and medical care) and to engage in acts “reasonable and necessary to conduct that party’s usual business and occupation.” As to what this language means and how these exceptions to the standing order apply in your case, consult an experienced family law attorney.
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. Click here to download a complete copy of Travis County Standing Order, or contact either of our offices (in Austin or Bastrop) to discuss your needs.