The Use of Preliminary Injunctions in Divorce
Emotions can run high in divorce and sometimes one party will be tempted to destroy property that they do not feel the other is entitled to, or intentionally waste or hide marital property. In especially acrimonious divorce cases where it is clear that the parties will not be able to reach a consensual property settlement agreement but instead brace themselves for a long bitter battle in court, the court may order what is called a preliminary injunction.
An injunction is a type of court order that requires a party to do or not do a specific act. If an act has already started, the court can order an injunction to make the action cease. Conversely, the court can also order what is called a preliminary injunction to require a party to not do the act before it happens as a preventative measure. In divorce cases, a preliminary injunction can be served against either party during the separation period and usually relates to not preventing either party from interfering with marital assets before the judge rules on the final division of property.What is a Preliminary Injunction?
In a divorce proceeding, a preliminary injunction can be used to prohibit either party from hiding or destroying assets in order to affect the amount available for division in the divorce. Such behavior is referred to as the “dissipation” of assets, which is against the law in North Carolina. Judges do not treat the dissipation of marital assets lightly because it denies the other spouse of their right to an equitable distribution, a right the courts here take very seriously.Making Equitable Distribution… Equitable
North Carolina is in the majority of states that uses the equitable distribution model when dividing property in a divorce. Equitable distribution looks at a number of factors in attempting to create a fair, not necessarily equal, division of marital property. This is in contrast to the minority of states that simply divide everything 50-50.
Among the factors a court will consider when making an equitable distribution are each party’s income, property and debts; earning potential; age and physical and mental health; support obligations from a previous marriage; custody of children of the marriage; joint contributions or expenditures; and the length the marriage. The court can also take into account if one spouse delayed their career in order to stay at home and raise children from the marriage.
In the same spirit of fairness as equitable distribution, the courts also want to forestall any attempts at fraud in a divorce. Intentionally hiding assets to avoid having to divide them upon divorce is illegal and can have an extremely detrimental impact on a divorce case and both spouses’ lives.
NOTE: While a preliminary injunction is designed to prevent unwanted behavior before it starts, if the ongoing fraudulent hiding of assets is discovered, the order the judge would issue to compel the person to stop hiding the assets and reveal them would just be called an injunction. Other types of injunctions that can be issued in divorce cases include stay-away order and restraining orders.Penalties for Violating a Preliminary Injunction
If a person starts or stops prohibited conduct in violation of a preliminary injunction, that person can be found in contempt of court. Civil contempt can imprison someone until they comply with a court order for up to 90 days for each separate violation. If the person still refuses to comply with the court order in contempt of court, he or she can be re-imprisoned for up to 12 months. Disobeying a direct order from a judge, particularly in an acrimonious divorce case, will not garner you any favor for the remaining duration of your case.
Intentionally fraudulent behavior can also open a person up to criminal charges. Whether the destruction or hiding of marital assets was intended to be fraudulent or just malicious, that person can also be liable for civil damages to the other spouse for denying them of their right to an equitable distribution.
If you are getting a divorce and think that your former partner might be hiding assets, or is going to hide or destroy assets, it is important to have the help of an experienced and industrious family law attorney. Exposing and proving fraud to the courts can be a high bar in what is already an extremely complicated legal process. The family law attorneys at Arnold & Smith, PLLC offer comprehensive representation in divorce and many other family law proceedings. Contact our office today for a consultation with one of our family law attorneys about your case.