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Freezing your assets off: a powerful remedy on thin ice.

Article Excerpt
Family law proceedings assert enormous power, and none are more shocking to the unsophisticated litigant than a temporary injunction freezing all of his or her assets. Typically the businessman is sitting in his office a day or two after the last squabble with his wife and is visited by the process server who hands him a court order, obtained without notice, restricting all of his transactions and assets. To his acute embarrassment, the order is also served on his banks, brokerage institutions, partners, and other financial connections, all of whom will be on the phone to him that very day.

Prejudgment restrictions on persons and properties without prior notice are few, expensive, and strictly constrained by constitutional limitations, but not so in family proceedings.

The fundamental statutory authority for prejudgment financial injunctive action in family law is F.S. [section] 61.11. (1) It states in part:

(1) When either party is about to remove himself or herself or his or her property out of the state, or fraudulently convey or conceal it, the court may award a ne exeat or injunction against the party or the property and make such orders as will secure alimony or support to the party who should receive it. (2) (Emphasis added.)

The statute must be invoked by strict compliance with Fla. R. Civ. P. 1.610, especially if the relief is sought without notice. (3) This particular relief is not of recent vintage, having existed, essentially unchanged, since 1828 when it was enacted by Florida's infant territorial government. (4) Several of the judicial circuits in Florida have even taken to issuing standing financial injunctions as a matter of course with every dissolution filing, ambitiously taking over the authority of the legislature and turning a blind eye to due process. (5) In addition, most family law practitioners will affirm that many of our circuit courts will enter these types of injunctions with the most minimal showing.

It is the extension of this statutory injunctive relief to protect equitable distribution claims that, upon closer scrutiny, is not authorized by either the statute or the case law. The use of F.S. [section] 61.11 as the basis for a prejudgment freeze on the use of assets both marital and nonmarital for securing equitable distribution has gone unscrutinized and unchallenged in recent years, especially...