THE AUTOMATIC TEMPORARY INJUNCTION
THE AUTOMATIC TEMPORARY INJUNCTION
Okla. Stat. tit. 43§110 imposes an Automatic Temporary Injunction in Oklahoma divorce cases. Although the focus of this article is divorce cases, it operates the same in cases brought for an annulment of a marriage or for legal separation. This injunction is both a negative injunction and a mandatory injunction. In other words, it both prohibits some conduct, and it also mandates or requires other behavior. It goes into effect once the party is given notice of the filing of a divorce case. This means for the party initiating the new case, it goes into effect when the Petition for Dissolution of Marriage is filed. It goes into effect against the other party when that party is either served with the petition and summons, or upon the other party signing a waiver or accepting service.
The Automatic Temporary Injunction, or “ATI,” includes eleven (11) negative commandments. These are behaviors that are prohibited by the ATI.
1. The first item addressed by the statute is intended to preserve the marital property that the Court is ultimately responsible to divide between the parties. The parties are prohibited from transferring the ownership of any marital property to a third person. The parties are also prohibited from encumbering such property. In other words, marital property can not be pledged or put up as collateral for a debt after the ATI is in effect. Moreover, the parties are prohibited from concealing or hiding any marital Property. Finally the parties are prohibited from disposing in any way any of the marital property. There are five (5) exceptions to the prohibition. First, the parties can reach an agreement that permits one or more of the actions. For example, it the parties enter a written agreement to sell the marital residence, it may be marketed despite the ATI. Second, on application to the court, it may be ordered that some action otherwise prohibited by the ATI is allowed to go forward. Third, if selling or transferring property is a function of the usual business affairs of a party, they may continue to conduct their ordinary business affairs. For example if one of the parties operates a retail business as a sole proprietorship, the inventory may be a marital asset, but the business is allowed to continue. The last two exceptions are conditional exceptions. The allowance of the fourth and fifth exceptions is conditioned upon notice of a proposed extraordinary expenditure and that a full accounting be made to the opposing party. The fourth exception allows the extraordinary expenditure of a marital asset for the purpose of retaining an attorney for the case. The fifth and last exception allows an extraordinary expenditure for the necessities of life.
2. The ATI prohibits making any withdrawal for any purpose 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.
3. The ATI prohibits withdrawing or borrowing all or any part of the cash surrender value of any life insurance policies on either party or their children,
4. The ATI additionally prohibits changing any beneficiary designation on any life insurance policies on the life of either party or any of their children.
5. Another prohibition is imposed against canceling, altering, or in any manner affecting any casualty, automobile, or health insurance policies insuring the parties’ property or persons.
6. Additionally, the parties are prohibited from opening or diverting mail addressed to the other party.
7. Both parties are expressly prohibited from signing or endorsing the other party’s name on any negotiable instrument, check, or draft, such as tax refunds, insurance payments, and dividends, or attempting to negotiate any negotiable instruments payable to either party without the personal signature of the other party.
8. Both parties from prohibited from molesting or disturbing the peace of the other party or of the children to the marriage.
9. Both parties are also prohibited from disrupting or withdrawing their children from an educational facility and programs where the children historically have been enrolled, or day care.
10. Both parties are further prohibited from hiding or secreting their children from the other party.
11. Moreover, both parties are restricted from removing the minor children of the parties, if any, beyond the jurisdiction of the State of Oklahoma, acting directly or in concert with others, except for vacations of two (2) weeks or less duration. An exception is provided if the party wishing to travel has the prior written consent of the other party. Further it is required that such consent be granted unless there is a reasonable basis for withholding it.
The Automatic Temporary Injunction also mandates or requires that seven (7) certain other behaviors be undertaken and performed.
1. The first mandatory provision mirrors the fifth negative injunction against changing any insurance policy by creating an affirmative duty requiring the parties to maintain all presently existing health, property, life and other insurance which the individual is presently carrying on any member of this family unit, and to cooperate as necessary in the filing and processing of claims. Any employer-provided health insurance currently in existence must remain in full force and effect for all family members.
2. All of the last six (6) requirements deal with the delivery of documents. The ATI is a state statute and applies in every county in Oklahoma. The ATI requires all the documents be produced by each party within thirty (30) days. For the party filing, the thirty (30) days starts with the date of filing. For the other party, it starts with the date of service. Some Counties, such as Tulsa, have local court rules that also require the delivery of certain documents at the beginning of a case. In Tulsa county the documents are to be delivered by both parties within twenty (20) days of the date of service. The six (6) categories of documents the ATI requires to be delivered are as follows:
A. The federal and state income tax returns of each party for the past two (2) years [Tulsa county requires three (3) years] and any nonpublic, limited partnership and privately held corporate returns for any entity in which either party has an interest, together with all supporting documentation for the tax returns, including but not limited to W-2 forms, 1099 forms, K-1 forms, Schedule C and Schedule E. If a return is not completed at the time of disclosure, the parties shall provide the documents necessary to prepare the tax return of the party, to include W-2 forms, 1099 forms, K-1 forms, copies of extension requests and estimated tax payments;
B. Two (2) months of the most recent pay stubs from each employer for whom the party worked. Tulsa County requires a statement of income be prepared and delivered, supported by copies of ninety (90) days of pay stubs or other evidence of all income received in the three (3) months or ninety (90) days before the date of service;
C. Statements for the past six (6) months for all bank accounts held in the name of either party individually or jointly, or in the name of another person for the benefit of either party, or held by either party for the benefit of the minor child or children of the parties;
D. Documentation regarding the cost and nature of available health insurance coverage for the benefit of either party or the minor child or children of the parties. Tulsa County requires this information within twenty (20) days of service of the Summons and Petition;
E. Documentation regarding the cost and nature of employment or educationally related child care expenses incurred for the benefit of the minor child or children of the parties. Tulsa county requires this information within twenty (20) days of service of the Summons and Petition; and
F. Documentation regarding all debts in the name of either party individually or jointly, showing the most recent balance due and payment terms.
In Tulsa county, there is an additional requirement to also deliver a prepared statement of accurate and provable monthly living expenses within twenty days of the service of the Summons and Petition.
The Automatic Temporary Injunction is the equivalent of a court order. Failure to comply with its terms can be enforced with the powers of contempt of court. The Automatic Temporary Injunction does not cover completely and comprehensively all concerns that may arise upon filing a new divorce. Although the ATI prohibits signing the other party’s name to any document, it does not necessarily prohibit the other party from incurring joint debt, for example on joint credit cards where both are authorized signers. Until a temporary order is issued there is no way to prevent this conduct, but it can be dealt with in the final decree. Also, the ATI does not address the continuation of utility services in the marital residence. However, if a vacating spouse cuts the utilities on the remaining spouse and the children, the vacating spouse should expect severe consequences to custody or visitation rights for such egregious conduct. If you have any questions about whether any actions you are considering taking in anticipation of divorce or after you have been served with papers, consult your attorney before acting.