In Divorce & Family Law Temporary Restraining Orders ("TROs") can often include Orders Of Protection however this blog post is about applications that are not based on allegations of domestic violence. TROs can also be referred to as "injunctions". This blog is a brief introduction to this unique aspect of law.
An example of a TRO is where the Court directs a person to do or not do something based usually upon an Order To Show Cause alleging that the other person is about to do something that if not stopped immediately by the court will result in "irreparable harm" and that there is "no other adequate remedy at law" together with the additional requirement of convincing the court that there is a "likelihood of success on the merits".
The initial application to the Court is done by Order To Show Cause and except in limited situations, the Court will require that the other side be provided "notice" of the intent to make the request. Years ago, notice was not required, and TROs were much easier to obtain because there was no argument in opposition the first time the request was made. There was much gamesmanship because the Court initially only heard from one side.
Regardless, in all civil litigation (not just Family Law) all three of the requirements of the second paragraph above must be set forth in the supporting affidavit(s) or the request will likely be denied.
"Irreparable Harm" is a high standard that means that if the Court does not act something will take place that cannot be fixed or remedied later on. An example could be that an asset will be transferred and there will be no way to get the asset back or to obtain just financial compensation. So for example a rare painting will be sold at a blind auction, a piece of real estate will be sold and the sale cannot be undone (real estate is considered "unique" so it is not always just about the money). It is also applicable where a wedding could be scheduled or a college graduation could be happening and one parent is threatening not to permit the child to attend an important family event.
In the above examples the second requirement of no other "adequate remedy at law" means that if the action is not stopped (the injunction part) then afterwards it will be impossible to fix or compensate the injured person in any meaningful and adequate way. So in the prior example the rare painting has disappeared and cannot be recovered, the real estate has been sold the money paid and the new owner is in possession of the property, or the wedding or graduation is now a thing of the past. These are examples where the "payment of money" will not fix the injustice.
Finally, the Court must be convinced that the person seeking the injunction is likely to win once the Court has received a written or oral response from the other side or after a preliminary hearing has been held and the Court believes that the requesting party is likely to win after a full review of the issues presented ("prevailing upon the merits").
The granting of a TRO is highly technical and is also very nuanced in how the application/argument is presented to the judge. The lack of any of the three requirements will usually result in a denial. So the goal of the opposing party is to attack as many of the three requirements as possible because if they convince the judge that one aspect is missing the request should fail.