Whoa There Cowboy!: Temporary Restraining Orders

November 10, 2005

The big thing about dealing with the Courts is timing. They do their best, but there are times when it seems like the Courts took their scheduling notes from the same book as the DMV.

A suit for divorce in Texas can take a MINIMUM of 60 days from start to finish. (TFC 6.702). More likely it can take upwards of nine months depending on the facts. During that time, most cases need the Court to intervene and set up some temporary orders so that everyone can “play nice” while the case is going on. I’ll discuss temporary orders in more detail later.

Sometimes, the parties to a suit are in need of some IMMEDIATE intervention by the court to either keep the peace between the parties, make sure a parent does not disappear with a child, or ensure that one party does not destroy or use up the community property just to be a jerk. Unfortunately, once a suit has been filed it may take two, three, or at some times of the year, even four weeks before the case can be brought before the Judge. A lot of bad things can happen in that time.

The law’s solution to this problem is called a Temporary Restraining Order (not to be confused with Temporary Orders-which will be discussed in a later post). A “TRO” is what we call an “ex parte” order- that is, it is signed by the judge without the need for a formal hearing of both parties. Often the TRO is presented to the judge on the same day that you file your original petition with the Court. The reason the courts can get away with signing an order without offering a hearing for both parties is that the nature of the TRO is very temporary relief. Your TRO will have a hearing date set on it by the clerk in which you will have to appear before the judge. (That is why the form is formally called a “Temporary Restraining Order and Notice of Temporary Order Hearing”). The law limits a TRO order to being effective for only 14 days. The idea is that the clerk of the court will give you a hearing in front of the judge within this time. Ha! Fat chance. In most of the larger counties, you will have to wait much longer. That is why the law allows the TRO to be renewed for an additional 14 days. (TRCP 680). Beyond that you are going to have to seek out a judge and explain why you need additional time under a TRO. Generally accepted reasons are that you have tried, but have not yet served the other party, or if the other party was served, they had too little time to find an attorney and prepare for the hearing.

Texas Family Code 6.501 sets out ten standard items that may be included in the TRO. If there are children, you can also include injunctions (what I call “thou shall nots”)against disturbing the peace of the kids or removing them from a certain geographical area. There are limitations to what a court can order in a TRO because it is done without a fair hearing and a party has a right to have a hearing if an order would otherwise be unfair or impinge on constitutional rights. You can’t exclued a spouse from living in their residence without a hearing (unless a protective order is also sought due to domestic violence). You can’t prevent a party from making reasonable expense for basic living needs. You can’t require a party to do something like pay bills or pay child support. If there is a pre-existing order on the children, a TRO cannot change the party appointed as the primary conservator.

Many lawyers file the TRO restricting only the other party. Some courts have a policy to only grant TROs if they are made mutual to both parties- and they will stamp the TRO with a big “MUTUAL” stamp so that the injunctions are binding on both the husband and the wife. This makes sense because neither party should be making harrasing phone calls, or making threats to the other party, and all the other “play nice” injunctions of 6.501. In fact more attorneys are simply making it mutual from the drafting stage.