A provisional remedy is a temporary court order issued before a final judgment to protect a party’s rights, preserve property, or hold the situation in place while a lawsuit runs its course.1Legal Information Institute. Provisional Remedies It exists to stop one side from making a future judgment worthless by draining accounts, selling disputed property, or destroying key assets before the court can rule. Getting one is not easy. You have to show the court you’ll likely win your case and that waiting would cause harm no amount of money could repair.
The Main Types You’ll Encounter
Federal Rule of Civil Procedure 64 recognizes several provisional remedies, and state courts offer similar tools under their own rules.2Legal Information Institute. Federal Rules of Civil Procedure Rule 64 – Seizing a Person or Property Which one fits depends on what you’re trying to protect and what the other side might do while the case is pending.
Injunctions: TROs and Preliminary Injunctions
An injunction orders someone to do something or stop doing something. In the provisional context it takes two forms. A temporary restraining order is emergency, short-term relief that lasts no more than 14 days under federal rules, with one possible 14-day extension for good cause, and it can sometimes be issued without first notifying the other side.3Legal Information Institute. Federal Rules of Civil Procedure Rule 65 – Injunctions and Restraining Orders A preliminary injunction is a longer order that typically remains in force until final judgment, and it always requires notice to the opposing party and a hearing.
Courts issue injunctions to stop a former business partner from deleting shared files, halt construction on disputed land, or block the transfer of contested assets in a divorce.
Attachment
Attachment is the court-ordered seizure of a defendant’s property, such as bank accounts, real estate, or vehicles, before any judgment is entered.2Legal Information Institute. Federal Rules of Civil Procedure Rule 64 – Seizing a Person or Property The property is held by the court or a designated official until the case ends. If the plaintiff wins, the property can satisfy the judgment. If the defendant wins, it goes back. Attachment is the usual choice when you have real reason to believe the other side is about to move assets out of reach.
Garnishment
Prejudgment garnishment works like attachment but targets money owed to the defendant by a third party, such as wages from an employer or funds held at a bank.2Legal Information Institute. Federal Rules of Civil Procedure Rule 64 – Seizing a Person or Property The court orders the third party to freeze those funds instead of releasing them. It’s less common than post-judgment garnishment, and courts generally require a real risk the defendant will dissipate assets.
Replevin
Replevin lets you recover specific physical property someone else is wrongfully holding.4U.S. Marshals Service. Writ of Replevin Where attachment secures assets to pay a future money judgment, replevin is about getting the actual item back: equipment a former partner won’t return, a vehicle a repair shop refuses to release over a disputed bill, inventory seized without authorization. A court official physically takes the property and either returns it or holds it pending the outcome.5Legal Information Institute. Replevin
Receivership
In a receivership, the court appoints a neutral third party, called a receiver, to take control of property or a business tied up in the lawsuit.6Legal Information Institute. Receiver The receiver manages the asset under court supervision to prevent waste, fraud, or mismanagement. It’s common in disputes over commercial real estate, businesses at risk of being looted by one partner, or any property that needs active management neither party can be trusted to handle.
Sequestration
Sequestration also involves seizing and holding property through the U.S. Marshal or another official until the case is resolved.7U.S. Marshals Service. Writ of Sequestration The difference from attachment is purpose: sequestration preserves specific disputed property rather than securing assets to pay a money judgment. When two parties both claim ownership of the same equipment, sequestration puts it in neutral hands until the court decides.
Notice of Pendency (Lis Pendens)
A notice of pendency, also called a lis pendens, is a recorded notice that a lawsuit affecting a specific piece of real estate is pending.8Legal Information Institute. Notice of Pendency It doesn’t seize the property or block a sale outright, but it warns potential buyers that the property is tied up in litigation. In practice, few buyers will touch a property with a lis pendens attached, so marketability freezes until the case ends.
What You Have to Prove
Courts don’t hand out these orders because you asked. The U.S. Supreme Court set a four-factor test that governs whether a preliminary injunction, the most common form, should be granted:9Justia U.S. Supreme Court Center. Winter v. Natural Resources Defense Council, Inc.
- Likelihood of success on the merits. You have to show you’ll probably win the underlying case. A weak claim won’t support emergency relief.
- Irreparable harm. The harm you’ll suffer without the order must be the kind money can’t adequately fix, and the Supreme Court requires it to be likely, not merely possible.
- Balance of hardships. The court weighs your harm without the remedy against the defendant’s harm with it. If the order would devastate the defendant while only marginally helping you, expect a denial.
- Public interest. The court considers whether granting the order serves or hurts the broader public, which matters most in cases involving government action or industries that affect many people.
Attachment, garnishment, and replevin have their own requirements that vary by state, but courts generally want proof the underlying claim is valid and that the defendant is likely to dispose of assets if nothing stops them. The common thread across every type: you have to convince the judge that waiting for a final judgment creates a real and serious risk.
How to Request One
You start by filing a motion, supported by sworn affidavits or declarations laying out the specific facts that justify emergency relief.3Legal Information Institute. Federal Rules of Civil Procedure Rule 65 – Injunctions and Restraining Orders Vague allegations don’t work. The court needs concrete evidence: bank records showing assets being moved, communications revealing plans to sell disputed property, documentation of ongoing harm that can’t wait.
For a preliminary injunction, the other side must get notice and a chance to be heard. A TRO can issue without notice in truly urgent situations, but only if your attorney certifies in writing what efforts were made to give notice and explains why notice shouldn’t be required. Courts treat ex parte TROs as a last resort.
The Security Bond
Courts usually require the requesting party to post a security bond before the order takes effect.1Legal Information Institute. Provisional Remedies The bond protects the other side: if the order turns out to have been wrongly issued, it covers the damages the restrained party suffered while it was in force. The court sets the amount based on potential harm, and for attachment or replevin, bonds often run one to two times the value of the property involved. If you can’t afford the bond, you may not get the remedy, and that’s worth thinking through early.
Moving From a TRO to a Preliminary Injunction
A TRO expires no later than 14 days after entry, and the court can set a shorter period. If you need continued protection, you have to move for a preliminary injunction, which means a full hearing with both sides present. Courts schedule those hearings quickly and give them priority. If you obtained a TRO without notice and then fail to pursue a preliminary injunction, the court will dissolve the TRO.
What Happens if Someone Violates the Order
A provisional remedy is a binding court order. Ignoring it isn’t just risky; it can be criminal. A party that violates one can be held in contempt of court, with penalties that include fines and jail.10Legal Information Institute. Contempt of Court Civil contempt sanctions push the violating party toward compliance and typically end once they obey. Criminal contempt punishes the violation itself and can impose a fixed fine or jail term regardless of later compliance.
If You’re on the Receiving End
You have options to fight a provisional order.
Motion to Dissolve or Modify
When a TRO was issued without notice, you can move to dissolve or modify it on as little as two days’ notice, and the court must hear and decide the motion promptly.3Legal Information Institute. Federal Rules of Civil Procedure Rule 65 – Injunctions and Restraining Orders For preliminary injunctions and other provisional orders, you can ask for relief based on changed circumstances, newly discovered evidence, fraud by the other side, or a showing that applying the order going forward is no longer fair.11Legal Information Institute. Federal Rules of Civil Procedure Rule 60 – Relief from a Judgment or Order The most common basis is that the facts have shifted enough that the original justification no longer holds.
Interlocutory Appeal
Most court orders can’t be appealed until the case is over, but injunctions are an exception. Federal law allows an immediate appeal of any order granting, refusing, modifying, or dissolving an injunction.12Office of the Law Revision Counsel. 28 USC 1292 – Interlocutory Decisions You don’t have to sit under a preliminary injunction for months waiting for trial before a higher court can review it. The appeal doesn’t automatically pause the injunction, though. You’d typically need a separate stay from the appellate court while the appeal proceeds.
The Risk of Asking for One
Provisional remedies carry real financial exposure for the party that requests them. If the court later determines the remedy was wrongfully issued, because you lose the case or the order is overturned, the bond you posted becomes the other side’s compensation for the harm they suffered while it was in force.3Legal Information Institute. Federal Rules of Civil Procedure Rule 65 – Injunctions and Restraining Orders That can include lost business revenue, compliance costs, and attorney’s fees spent fighting the order.
This isn’t theoretical. A business that gets a TRO blocking a competitor’s product launch and then loses at trial can be liable for every dollar the competitor lost during the freeze. Courts set bond amounts with that scenario in mind, but practices vary on whether the bond caps total exposure. Don’t seek a provisional remedy unless your underlying case is strong enough to justify the financial bet.