Automatic Temporary Restraining Orders in Family Law

California Family Code Section 2040 provides that certain orders go into effect upon the filing of a Petition for Dissolution, Legal Separation or Nullity. Automatic Temporary Restraining Orders, often referred to in short as ATROs, go into effect at different times for each spouse. The spouse who files the action is immediately bound by the orders upon filing the Summons and Petition, while the other spouse is bound to the orders once he or she is served with the Summons.

The ATROs are listed on page two of the FL-110 form (see Summons form here). The ATROs put limits on what actions parties can take during a divorce which may harm the children involved or affect marital assets. The ATROs remain in effect until there is a court order that modifies them, the petition is dismissed or there is a final judgment. Court orders can be agreed upon (stipulated orders), which means that if both spouses agree to something that would otherwise be prohibited in the ATROs, they can be changed prior to the final divorce settlement judgment.

There are four main issues the Automatic Temporary Restraining Orders cover:
1.) ATROs prevent the children from being removed from California. They also instruct the parents that neither of them may apply for new or replacement passports for the kids. The parents can consent in writing to do otherwise.

2.) ATROs restrain certain community or individual property-related actions. The automatic temporary restraining orders tell each spouse they are restrained from “transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate,” once again without the other spouse’s written consent or a court order.

3.) ATROs limit spouses from “cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability held for the benefit of the parties and their child or children for whom support may be ordered.” This restraining order also requires a spouse to notify the other of any proposed extraordinary expenditures at least five business days before those expenditures are incurred; the spouse must also account to the family court for all such expenses made.

4.) ATROs automatically restrain a spouse from “creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer, without the written consent of the other party or an order of the court.”

There are a few exceptions to the ATROs, which include the following:
1.) A party is permitted to use any property or debt to pay reasonable attorney’s fees and costs in order to retain legal counsel in the proceeding. Family Code 2040(a)(2) says: “Nothing in the restraining order shall preclude a party from using community property, quasi-community property, or the party’s own separate property to pay reasonable attorney’s fees and costs in order to retain legal counsel in the proceeding. A party who uses community property or quasi-community property to pay his or her attorney’s retainer for fees and costs under this provision shall account to the community for the use of the property.” 

2.) Family Code 2040(b) allows a party to create a will or modify an existing will; revoke a revocable trust, pursuant to the instrument; and eliminate a right of survivorship to property, provided that notice of the change is filed and served on the other party before the change takes effect.

3.) California Family Code Section 235 states that: “Nothing in this part precludes either party from applying to the court for modification or revocation of the temporary restraining order provided for in this part or for further temporary orders or an expanded temporary ex parte order.” If a spouse feels that additional protections are needed for their case, they may ask the Court to assist by entering different orders.

To read the family code section 2040-2041, visit http://www.leginfo.ca.gov/cgi-bin/displaycode?section=fam&group=02001-03000&file=2040-2041

The use of a family law attorney is advisable in certain circumstances. To discuss your case, contact The Stockdale Law Firm.

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