Automatic Protections During Your Divorce or Legal Separation Case

By: Curtis Wiberg

If you are contemplating a divorce or legal separation, but are afraid of retaliation by your spouse, know that the Colorado Legislature has enacted law to protect you right out of the gate. This provision of the law is known as the Automatic Temporary Injunction and is located at C.R.S. 14-10-107 (4)(b). The specific terms of the injunction are required to be set forth in both the divorce summons and petition. There are four key protections set forth in Section 107, and they go into effect on the Petitioner as soon as the Petition for Dissolution of Marriage is filed with the Court. The protections go into effect on the Respondent as soon as the Respondent is personally served or signs a waiver of service. The four protections are as follows:

(A) Restraining both parties from transferring, encumbering, concealing, or in any way disposing of, without the consent of the other party or an order of the court, any marital property, except in the usual course of business or for the necessities of life and requiring each party to notify the other party of any proposed extraordinary expenditures and to account to the court for all extraordinary expenditures made after the injunction is in effect;

(B) Enjoining both parties from molesting or disturbing the peace of the other party;

(C) Restraining both parties from removing the minor child or children of the parties, if any, from the state without the consent of the other party or an order of the court; and

(D) Restraining both parties, without at least fourteen days’ advance notification and the written consent of the other party or an order of the court, from canceling, modifying, terminating, or allowing to lapse for nonpayment of premiums, any policy of health insurance, homeowner’s or renter’s insurance, or automobile insurance that provides coverage to either of the parties or the minor children or any policy of life insurance that names either of the parties or the minor children as a beneficiary.

Items (A) and (D) were enacted to prevent financial retaliation or chicanery. Item (A) is designed to prevent one spouse from hiding or transferring marital property or money to secret accounts, or other family members, or from blowing through marital funds with unnecessary purchases (like a new car). Even though the injunction goes into effect at the beginning of the case, any improper transfers or efforts at concealment done in contemplation of a divorce are not rewarded by the Courts, and each party’s rights to discover financial transactions going as far back as three years all combine to protect a party from misconduct by the other party. While not explicitly stated, Courts may expect the parties to stay on top of bills and preserve the other party’s credit.

Item (D) is a prohibition preventing one party from removing the other from health insurance, car insurance, or the like. One spouse wrongfully removing the other from a health insurance plan during the open or re-enrollment period is something I have witnessed over the years as a common type of retaliation. At times this is done contrary to the injunction, which requires insurance policies to be kept intact, unaltered, until the Decree of Dissolution of Marriage enters. Once Decree enters, most plans will require removal of the covered former spouse, generally within 30 day. Most insurance companies view final divorce as a “life changing event” warranting changes to a policy outside of the open enrollment period. When one spouse wrongfully removes the other, most courts are inclined to enter orders rectifying the situation and requiring that the removed spouse be put back on the policy. Most insurance companies will adhere to court orders in these situations.

Item (C) is a provision designed to protect a spouse from the other from removing the children out of state. The primary concern tied into this provision would be situations in which a divorce case is filed and one spouse decides they will just take the kids and from Colorado to live elsewhere, thereby depriving the other spouse of time with the children. Ultimately, parents may be able to move with the children from Colorado, but Court orders approving such a move need to be obtained first and violation of this provision can have significant consequences for the offending party, including a potential loss of “custody.” The consequences can be both short and long-termed. An unfortunate consequence of this provision which I have seen over the years ties into vacations and one spouse using the provision as a means to prevent the other from going on an out of state vacation with the kids while the Colorado divorce case is pending. Keep in mind, Court permission can be sought for such a vacation if the other party is inappropriately hiding behind the injunction.

And finally, item (B), is designed to generally preserve the peace between the parties. Divorces are emotional and our worst instincts sometimes surface as parties go through the process. Know that the Courts expect the parties to not go down the road of harassment, verbal abuse, threats of undermining the other party’s employment or threats of embarrassment by publicly divulging marital issues, or any sort of other misconduct meant to harm the other party. Know, too, that 14-10-107 (b)(4.1) empowers law enforcement to act in its discretion to enforce item (B). That said, if the threats or harassment by a spouse cross the line of physical abuse or threats of abuse, a restraining order under C.R.S. 13-14-101 et seq. should be obtained by the victim spouse, as the protections to the victim and consequences to the abuser are stronger.

The violation of any of these provisions of the Automatic Temporary Injunction are enforced generally through contempt of court or other motion designed to rectify the problem. Additionally, violations of Item (A) can be regarded as economic misconduct that can affect how the Court determines the division of marital assets and debts.

The bottom line is that if you and your spouse are going through a divorce, the law and the Courts demand that each party proceed through the process in good faith and without misconduct. If misconduct occurs, consult a Denver divorce attorney to enforce those statutory protections. Though the terms of the Section 107 injunction are designed to protect, they are only helpful if you avail yourself of them by taking action to enforce them.