An automatic temporary restraining order is a family court order preventing parents or husbands or wives from doing something. The simple explanation is that the automatic temporary restraining order, or ATROS for short, prevents actions that would harm the children and/or any marital property. There are four different actions that are prevented under the an ATROS. These include:
- Restraining the removal of a child from California
- Restraining certain community or separate property related actions (like suddenly selling a house co-owned by your spouse)
- Restraining some actions against changes to insurance policies (like life insurance)
- Restraining certain non probate transfers (such as transferring marital property to avoid
We cover each of these in detail below. The short description of an ATROS is a mutual order that is effective immediately once it is served when issued in a dissolution, legal separation, nullity, or paternity action. The Summons of a Petition for Dissolution sums up ATROS with this sentence:
Automatic temporary restraining orders remain in effect until a final judgment is entered, the petition is dismissed, or there is a Court Order for termination.
Explanation of an Automatic Temporary Restraining Order
The word automatic implies that there is no need for either party to seek out these temporary restraining orders. These restraining orders include a set of 4 orders that are automatically effective when someone files for divorce. Each restraining order outlined briefly on the Family Law Summons (Form FL-110), which is filed with the court.
If a spouse had already begun an action that is a violation of the ATROS, it would depend on how much of a start was made. ATROS don’t really cover actions that occurred before ATROS went into effect, but there are exceptions and rules that may apply. It’s important that you talk to a family lawyer immediately about this area, if you are unsure. As far as how long the ATROS will stay in effect, it will end when the petition is dismissed or there is a final judgment. There are other ways to stop these orders early. It can be terminated earlier by a court order or a part of the ATROS can be modified. The court order doesn’t necessarily have to come from the judge, it can also be an agreement between both spouses or parents.
What Protection Can You Get with an Automatic Temporary Restraining Order?
The ATROS has a purpose of preventing both involved parties from these 4 actions:
- Illegally taking any involved child or children out of the state, without written consent from the other parent or an order from the family court. There is an exception when the child or children are already living out of state at the time that the petition was filed. If this is the case, the child does not need to be returned to California.
- Making any attempt to have an advantage over marital property, by transferring, encumbering, concealing, or in any way disposing of the property. This includes property that is real (real estate) or personal (physical items), whether it is community, quasi-community, or separate property. An attempt to do any of the above, without the prior written consent of the other party or an order of the court, is to be considered illegal with the ATROS in effect. Examples of protections under this policy include:
- Not being able to take out a loan on community property
- No pledging community property as security or collateral for a debt
- A party may not close a marital checking account or transfer money from the joint bank account to his/her own separate account
- Items and cash in a safe deposit box may not be removed or given to a third party to hold it for you
- Either party may not cash, borrow against, cancel, transfer, dispose, or change the beneficiaries of any insurance or other forms of coverage. These may include life, health, auto, and disability, that is held for the benefit of the parties involved or their child/children. This means that you may not:
- Cash in your life insurance policy and put the funds into your separate bank account
- Change the beneficiaries listed on your life insurance policy
- Remove your spouse or any of your children from your health, dental, or vision insurance policies
- Remove your spouse from your car insurance policy, even if you two do not live together anymore
- Nonprobate transfers or modification that would affect the disposition of the property is not allowed, except with the written consent of the other party of a court order. Nonprobate transfers do not include a Will that transfers property upon the death of a spouse. It does include these other instruments though:
- A revocable trust
- Financial institution pay on death account
- Totten Trusts
- Transfer on death registration of personal property
- Instruments that are listed in Probate Code § 5000
Along with these 4 preventions listed, neither party can make a large purchase without giving the other party at least 5 days notice. If there is to be a proposed huge expense, the purchasing spouse must be able to provide a reasonable explanation to the court, as to why the purchase was necessary.
What is Allowed?
On the flip side, there are some things that are allowed to be done or changed while the automatic temporary restraining order is in effect. These are not violations of the ATROS:
- Paying attorney fees with community property. Either spouse is allowed to use any property to pay their attorney fees and costs, provided that the fees/costs are reasonable. The property can use their part of community property to secure legal counsel through a Family law Attorney Real Property Lien. That means, if you own half of a car, you can use that value to secure the service of a lawyer. Of course, if you choose to do this, the other party must be notified.
- If dealing with wills, you are allowed to create, modify, or revoke it even if there is an active Automatic Temporary Restraining Order (as long as the other party is given notice before it takes effect). Furthermore, you are allowed to:
- Create and unfunded trust
- Execute and file a disclaimer of testamentary and other interests
- Revoke a nonprobate transfer (as long as the other party is notified before the change is made)
When referring to a “non-probate transfer”, we’re referring to another form of transferring property upon death, besides a will.
- It is not a violation to sever a joint tenancy or eliminate the right of survivorship to property during the process of divorce. As long as you file and serve the other party before the change takes place.
- Disposing of property is a violation of ATROS. However, if it is done in the “usual course of business”, it would be allowed. The courts will observe and analyze the nature of the business though, to make sure that it is legitimate and not a way to get around the system. You should talk to your family lawyer to see what property disposals are allowed under the “usual course of business” exception.
How Do ATROS Work?
In California, spouses are fiduciaries to each other. This means that they have the capability of acting on behalf of the other when dealing with situations that require great, trust, honesty, and loyalty. It is because of this fact that there is a need for Automatic Temporary Restraining Orders. The ATROS works to restrain spouses/partners from making decisions “on behalf” of the other spouse during the divorce process or other acts of legal separation.
California Family Law Code § 232 says that the ATROS is enforceable throughout California by any law enforcement agency that has received mailed notice of the order or has otherwise received a copy of the order and any officer who has been shown a copy of the order. In other words, it’s as simple as showing a law enforcement officer the order and he/she can enforce the order.
A situation in which this would apply is if your spouse is trying to take the children outside of California. You can show a law enforcement officer the order, and that officer would have the authority to enforce the restraining order and stop that spouse from leaving with the children.
If one party knowingly and willfully violates the ATROS contained within the summons, it is punishable by law. More notably, if a spouse violates the order in regards to removing a child from the state, they may be punished in a criminal proceeding under Penal Code 278.5. Even though the parent has legal custody of the child, taking him/her out of the state is considered kidnapping. With violation of the other 3 automatic temporary restraining order, there may be a contempt proceeding initiated against the violating spouse. The conviction may be a misdemeanor punishable by a fine of $1000 or less; it may also result in imprisonment in a country jail for 1 year or less. Of course, the punishment may also be both a fine and jail time.
It’s very important that you understand the orders under the ATROS, so that you don’t violate them. If there is something that you must do that violates these orders, work with your lawyer to file a motion to revoke, vacate or modify any or all of the four automatic temporary restraining orders.