What is a Temporary Restraining Order?
A temporary restraining order in a Utah divorce case is an emergency procedure available to a party who must get immediate relief. This most often arises in situations where one party is threatening to leave the state or country with the parties child or children. Another time it often arises is when one party is attempting to abscond with marital property or otherwise selling or otherwise transferring marital property.
A TRO let’s a party or his attorney get in to see a judge on a same day basis and present minimum facts to show that the party is entitled to the relief requested.
How Does One Get a Temporary Restraining Order?
The procedure for obtaining a temporary restraining order is governed by the Utah Rules of Civil Procedure 65A. Under that rule the court can enter a TRO if the moving party can show the following:
- The applicant will suffer irreparable harm unless the order or injunction issues;
- The threatened injury to the applicant outweighs whatever damage the proposed order or injunction may cause the party restrained or enjoined;
- The order or injunction, if issued, would not be adverse to the public interest; and
- There is a substantial likelihood that the applicant will prevail on the merits of the underlying claim, or the case presents serious issues on the merits which should be the subject of further litigation.
Although the above elements are the basic things that the applicant must prove, there is a specific provision of Rule 65A which states that a court in a divorce or other domestic case has unlimited powers to make sure an equitable decision is reached. What that means is that a divorce judge can enter any order he wants to so long in his discretion.
In cases involving child custody, the court will first look to “best interests” of the child and make a decision on those grounds. The best interests of the child is the paramount consideration in such TROs.
What is the Procedure After the TRO is Entered?
If the court enters the TRO is lasts 10 days unless there is a hearing and good cause is shown to extend it beyond the 10 days. At the hearing the court will hear evidence from both parties and then apply the standard set forth above. If the “permanent” TRO is entered it will remain the order of the court until the date of expiration given by the court.
If you have been served with TRO papers or need to get a TRO, contact our law firm at 801.413.1753 for a free consultation.