Preliminary Injunction

A preliminary injunction is a court order that is drafted up during the early stages of a lawsuit. Its purpose is to prevent one or both of the parties from doing anything to upset the status quo until the court can give the parties proper direction. An example of a preliminary injunction is one that would be issued against a company to stop it from making a particular product until the court can determine whether or not the product is dangerous, or whether it has caused, or has the potential to cause, any harm to consumers. To explore this concept, consider the following preliminary injunction definition.

Definition of Preliminary Injunction


  1. A court order restraining a party from doing some specified thing, until the matter is settled, or until the Court has issued a further directive.

Origin of Injunction

1520-1530        Late Latin         injunctiōn

What is an Injunction

An injunction is a court order meant to do one of two things:

  • To stop someone from engaging in a particular behavior
  • To compel someone to act in a certain way

Both of these situations require that the person follow the directive of the injunction until the matter is settled, or until the judge offers further direction on what to do going forward. A preliminary injunction is a temporary order, intended to maintain the status quo until the matter can be heard by the court.

Elements Required to Obtain a Preliminary Injunction

There are four elements required to obtain a preliminary injunction:

  • Real Possibility of Irreparable Harm – Should the action be allowed to occur, the party requesting the injunction may suffer irreparable harm. The harm must truly be irreparable, and no award of replacement items or money damages could make things right again for that party.
  • No Other Remedy – There is no other way to remedy the situation.
  • Greatest Harm – The party seeking the injunction stands the greatest chance of being harmed by the action.
  • Likelihood of Success – There is a substantial likelihood that the party requesting the injunction will win the lawsuit, based on the facts of the case. A judge will not grant a preliminary injunction if he feels the lawsuit is frivolous.
  • Public Interest Granting the injunction will serve the best interests of the general public (in a case that affects the public).

In several jurisdictions, the most important of the elements required to obtain a preliminary injunction is the likelihood that irreparable harm will be done, and that there will be no remedy under the law to compensate for such harm. In this case, the judge will consider:

  • How likely it is that the behavior will occur
  • The nature of the behavior at issue
  • Whether or not suffering harm from such behavior would be truly irreparable
  • Whether or not that harm can be compensated for with the award of monetary damages

Even if the judge finds that the behavior is very likely to happen, and that it will likely cause significantly irreparable harm, the judge may still deny the injunction based on the fact that the harm can be cured with money damages or some other remedy.

For example:

Judy and Dave are getting a divorce. When Dave engages in a campaign to make her life miserable, Judy moves out of the couple’s home, taking only what she can get in her car. Dave, who is still angry, immediately posts ads to sell Judy’s possessions left in the home. Some of those possessions have tremendous sentimental value, as they had belonged to her now-deceased mother and grandmother.

Judy files a request for a preliminary injunction to stop Dave from selling her possessions. At the hearing, Dave argues that he needs to sell the items to pay off some of the massive credit card debt that Judy had racked up during their marriage. Judy claims that the damages to her would be irreparable, because the items – especially the dresser she inherited from her grandmother – has deep sentimental value for her, and cannot be replaced.

It is likely that the judge would issue a preliminary injunction to prevent Dave from selling Judy’s things – or any of the couple’s belongings – until the matter can be dealt with during the normal course of the divorce proceedings. While Judy would be able to buy another dresser, she could not replace things that were handed down through her family.

Many states issue an automatic preliminary injunction (also known as an “automatic stay”) when a divorce is filed making it illegal for either party to a divorce to get rid of any of the marital property before the court can make a judgment on the division of property.

Types of Relief Available Through an Injunction

There are two types of relief available through an injunction: prohibitory relief, and mandatory relief. A prohibitory injunction is one of the most common types of relief available through an injunction. This type of injunction prevents one of the parties from acting in a certain way. An example of a preliminary injunction that is prohibitory is a “cease and desist order.” Cease and desist orders are used to stop someone from doing something, such as selling a product under a name that closely resembles another company’s trademarked name.

A mandatory injunction, on the other hand, orders a party to take some specific immediate action, rather than to stop doing something. Courts do not favor mandatory injunctions, and only grant them on rare occasions when they are absolutely necessary. As an example, a mandatory injunction can be sought to force the immediate removal of a building that was not supposed to have been built on a piece of property in the first place.

No matter what types of relief available through an injunction, the only limit on what a judge may order through such a device is whether the remedy being sought is reasonable. The injunction should attempt to abolish the immediate threat, while also keeping the court in such a position as to be able to enforce the order, and to determine whether the other party was compliant.

Preliminary Injunction in a Divorce

A preliminary injunction in a divorce is often automatic upon filing the divorce complaint. This injunction prohibits both spouses from doing things that could impinge upon the other spouse’s property or legal rights. It prohibits selling, giving away, or otherwise disposing of any of the marital property.

The purpose of a preliminary injunction in a divorce is to maintain the status quo until a written agreement can be drafted, or until the court has had the chance to evaluate the case and make a fair decision about dividing up the marital property.

A preliminary injunction in a divorce is a Court order that remains in effect until the case has been settled or has otherwise come to a close. A preliminary injunction in a divorce may include such orders as:

  • Insurance – All health insurance coverage must remain in effect until the divorce is finalized. This means that, if the husband has his wife covered under his employer’s insurance policy, he must keep that policy going until the divorce is final. Once final, the wife is responsible for securing her own insurance policy. The same is true of other types of insurance policies – such as automobile insurance.
  • Transfer of Community Property – Neither spouse is permitted to sell, donate, hide, or borrow against any property that the couple jointly owned during the marriage, unless it is absolutely necessary for survival, or in the normal course of doing business.

Those who do not comply with these orders can be arrested on charges of interfering with a judicial proceeding. He or she may also be found in contempt of court, which is the violation of a court order, which is punishable by a fine, jail time, or both. The other spouse may also be awarded damages.

Preliminary Injunction Example Involving the Navy

In July of 2009, the Navy had scheduled some training exercises that involved the use of sonar to find enemy submarines. Environmentalists were concerned that the high decibels being emitted by the sonar could potentially deafen the whales in the area.

The environmentalists referred to several studies that had found that similar sounds had caused whales to either swim away in panic, or dive down deeper into the water than was safe for them. Some whales even beached themselves after sonar was used in several countries. Necropsies that were performed on those whales showed signs of internal bleeding near their ears.

In February of 2007, the Navy published an assessment that found that using the type of sonar the Navy was using actually caused only slight harm to marine animals. The Navy also pointed to the fact that there was no harm done to marine mammals in Southern California, despite the Navy practicing training exercises in the area for over forty years.

The environmental groups who fought against the Navy asked the court for injunctive relief, claiming that the Navy was violating several environmental laws by continuing to train with sonar. The U.S. District Court for the Central District of California granted a preliminary injunction to stop the exercises from continuing.

However, the district court modified the order after the case was remanded to the Court of Appeals for the Ninth Circuit to allow the Navy to use sonar as long as they strived to minimize the potential damage their training exercises could have on the local sea life. The Navy appealed again, and the Ninth Circuit affirmed the modified injunction.

When the case reached the Supreme Court, the majority ruled 5-4 in favor of the Navy. The Court held that the standard that permitted the granting of a preliminary injunction in this case was not the “possibility” that there would be irreparable harm to sea life, but instead that “irreparable injury is likely” if such an injunction was not granted.

This case was a perfect example of a preliminary injunction being considered insofar as the “public interest” element. Here, the Court ruled that the public interest in conducting these naval training exercises outweighed what could potentially be irreparable harm to sea life. With that in mind, the Court reversed the decision of the Ninth Circuit Court of Appeals, and lifted the preliminary injunction prohibiting the Navy’s training exercises.

Related Legal Terms and Issues

  • Movant – A person who petitions a court or a judge for a ruling in his favor.
  • Plaintiff – A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.
  • Status Quo – The current situation.