If it is alleged that property has been fraudulently transferred to a third party and a request is made to return the property to the marital estate, the third party must be made a party to the divorce action. This material can be incorporated, if appropriate, as an integral part of the divorce pleading to be inserted as a paragraph preceding the prayer. (If the material is incorporated in the respondent’s pleading, it should be reworded to reflect that the respondent, rather than the petitioner, is the complainant.) Additional service is required on a third-party co-respondent. See the practice notes at section 3.74.
Request for Relief from Third Party for Fraudulent Transfer
1.Identity of Co-Respondent
Petitioner further complains of [name of co-respondent], Co-Respondent, who may be served with citation at [address, city, state].
2.Transfer of Property
Co-Respondent is the record title holder and/or registered owner of certain property that was fraudulently transferred by Respondent to Co-Respondent without consideration and/or for less than reasonably equivalent value. The purpose of the transfer was to defraud Petitioner of community-property rights in that property and/or Petitioner’s separate-property rights in that property, and Co-Respondent had notice of Respondent’s intent to injure Petitioner’s rights. Respondent has transferred to Co-Respondent the following items of property: [enumerate items, such as automobiles, bank accounts, real estate, jewels, and furs].
3.Voiding Transfer
Petitioner prays that the Court find that the items were transferred in fraud of Petitioner’s right in those assets and that, after notice and hearing, the Court enter an order setting aside the transfer as a fraud on the community and declaring the assets to be the community assets of Petitioner and Respondent and/or Petitioner’s separate property.
4.Request for Temporary Restraining Order
Petitioner fears that Co-Respondent will cause immediate and irreparable injury to Petitioner by attempting to sell, hide, or convey the property listed above unless Co-Respondent is temporarily restrained without notice from selling, conveying, mortgaging, or in any manner attempting to sell, convey, or mortgage any of the property; or removing the property from the jurisdiction of the Court.
Petitioner prays for a temporary restraining order against Co-Respondent and requests that, after hearing, the temporary restraining order be made a temporary injunction to be in effect until final judgment.
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The following language should be added, where applicable, to the temporary restraining order, form 3-3. |
On this date the Court considered the application for temporary restraining order against Co-Respondent, [name of co-respondent], and finds that irreparable injury will be done to Petitioner unless Co-Respondent is temporarily restrained because [state specific reasons for injury]. The Court grants the temporary restraining order against Co-Respondent, without notice, because [state specific reasons].
Petitioner is ORDERED to post bond in the amount of [number] dollars ($[amount]), payable to Co-Respondent, to ensure that Petitioner will proceed against Co-Respondent in good faith.
IT IS ORDERED that the clerk of this Court issue a temporary restraining order restraining Co-Respondent, [name of co-respondent], and Co-Respondent, [name of co-respondent], is immediately restrained, from selling, conveying, mortgaging, or in any manner attempting to sell, convey, or mortgage any of the property described above; or removing the property from the jurisdiction of the Court.