When you first read the words automatic temporary restraining orders, a lot of things can go through your head. So what are these things and why are they really important to your California divorce case? This article focuses on the following questions:
- What are automatic temporary restraining orders?
- What do automatic temporary restraining order prevent?
- How are automatic temporary restraining orders enforced?
Throughout this article we may refer to these automatic orders as ATROs for short. This article isn’t legal advice nor should it be construed as such. Let’s get started.
What are automatic temporary restraining orders?
ATROs are a set of four orders that automatically go into effect. They are written on the back (page two) of the FL-110 form, also knowns as a “summons.” On the back of the summons, they are now called Standard Family Law Restraining Orders. That’s the same thing as what we call ATROs. The summons is that document served with the divorce petition.
There is no need for either spouse to actually seek them to get these temporary restraining orders (hence the word “automatic”). When the petitioner spouse files the divorce petition, the ATROs bind the petitioner. When the respondent spouse is personally served, the ATROs bind the respondent. There are exceptions to the personal service rule including what the California Family Code 233(a) calls a “waiver and acceptance of service.”
Think of automatic temporary restraining orders as measures to maintain the status quo and instruct spouses what actions they cannot take that would harm the children or the marital assets.
What happens when a spouse has already started an action before the ATROs went into effect?
This depends on the facts and how much of a “start” we are talking about. Generally, ATROs are not intended to stop conduct that has already started before the petition. This is an area that is very factually rich and the advice of an experienced family law lawyer is important. It’s best not to make assumptions.
Do automatic temporary restraining orders stay in effect throughout the entire divorce?
Automatic temporary restraining orders stay in effect until there is a court order that modifies it or them, the petition is dismissed or there is a final judgment. So they can be terminated earlier than the final judgment but it takes a court order to do that. Remember court orders can be stipulated (agreed upon) orders.
What do automatic temporary restraining orders prevent?
Here is the complex part of the article. We cannot cover this in too much detail because we are concerned the legal jargon may get too much so we’ll cover the general rules and touch on exceptions but, as we wrote earlier, an experienced family law attorney’s advice is important. This article cannot begin to replace that since it is not legal advice of any kind.
The four ATROs do the following.
ATROs prevent the children from being removed from California.
The ATROs instruct the father and mother they cannot remove the children from California. They also instruct the parents that neither of them may apply for new or replacement passwords for the kids. Of course, the parents can consent in writing to do otherwise and either parent can seek a court order.
Why do the ATROs prevent the children from being removed from California?
Child custody laws in California are focused on the child’s best interest. That best interest involves, as much as reasonably possible, keeping stability in the child’s life. Children taken out of State or the United States, especially young ones, may become difficult to find if the parent wants to hide them. This can cause all kinds of problems including national or international child abduction issues and the involvement of domestic and foreign courts or law enforcement. The ATROs play it safe and tell both parents it is a violation of a court order to take them.
The ATROs don’t keep parents from seeking further orders to prevent abduction.
ATROs automatically restrain certain community or separate 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.
There is an important but rather vague exception to this rule and that is if any of these actions are taken “in the usual course of business or for the necessities of life.”
The ATROs also require one spouse to notify the other of any proposed extraordinary expenditures at least five business days (which means you skip weekends and court holidays) before those expenditures are incurred. The rule mandates the spouse also account to the family court for all such expenses made.
A common question we get is “what about attorney fees? I can’t pay it without doing exactly what the ATROs prevent.”
Access to the family court is an important part of the family law process. That is why 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. A party who uses other property that is subsequently determined to be the separate property of the other party to pay his or her attorney’s retainer for fees and costs under this provision shall account to the other party for the use of the property.
ATROs automatically restrain certain actions against insurance policies
The automatic temporary restraining orders tell the spouses that neither of them may engage in “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.”
That was a mouthful right? It makes sense. Insurance is such an important part of financial security and even healthcare needs.
ATROs automatically restrain certain nonprobate transfers
The automatic temporary restraining orders also set forth rules against creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer, without the other party’s written consent or a court order.
The words “nonprobate transfer” do not include a Will that transfers property upon the death of a spouse. But it does include many other instruments. These include:
- A revocable trust
- Financial institution pay on death account
- Totten trust
- Transfer on death registration of personal property
- Instruments listed in Probate Code 5000
Issues related to transfer of property on death in an insurance policy get pretty complex and are beyond the scope of discussion in this article.
Does this ATRO bar any estate planning actions?
Not really. Family Code 2040(b) carves out the following exceptions, in addition to changes to a Will (creation, modification or revocation) we have already discussed:
- Revocation of a nonprobate transfer, including a revocable trust, pursuant to the instrument, provided that notice of the change is filed and served on the other party before the change takes effect.
- Elimination of 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.
- Creation of an unfunded revocable or irrevocable trust.
- Execution and filing of a disclaimer pursuant to Part 8 (commencing with Section 260) of Division 2 of the Probate Code.
- The advice of an estate planning attorney for such actions and one that will work with your family law attorney may be necessary.
How are automatic temporary restraining orders enforced?
Spouses are fiduciaries to each other in California. That is a big deal. That fiduciary relationship is at the heart of why the ATROs exist. It is also why a spouse harmed by the other spouse as a result of an ATRO violation has rights similar to a breach of fiduciary duty action.
The family court can order restitution, lost profits and more. Sanctions and attorney fees are usually also a part of any such enforcement action. A contempt action can also be filed for violation of the ATROs and there is even the potential for criminal prosecution. To learn more about contempt, check out our law firm’s contempt of court in a California divorce page.
Family Code 2041 is also important. It states: “Nothing in Section 2040 adversely affects the rights, title, and interest of a purchaser for value, encumbrancer for value, or lessee for value who is without actual knowledge of the restraining order.”
Now that you have a good head start on what ATROs are and what they do, do you have questions about your specific situation? Has your spouse violated the automatic temporary restraining orders in one or more ways? Are you being wrongfully accused of violating it? We are here to help. If your case is located in the California counties we currently handle divorce and family law matters, contact us for an affordable strategy session to talk about your specific situation.