Mention “restraining order, “and most people think you are referring to physical violence or someone needing a court order to be protected. However, the Automatic Temporary Restraining Orders (ATROs) are something different. ATROs are used to ensure a measure of “respect” between divorcing spouses and establish specific rules pertaining to assets, insurance policies, beneficiary designations (including wills) etc.
When a divorce action is filed and then served, it includes an ATRO. In general this prohibits either spouse:
- From selling, transferring or borrowing against property;
- Borrowing or selling insurance held for the other spouse;
- Modifying beneficiaries on policies (health, life, retirement accounts, wills);
- Changing bank accounts;
- Destroying or hiding assets.
A party or even both parties, in a divorce case may even start hiding assets and income from each other as soon as divorce is anticipated. Spouses are thinking ahead of the game on how they can outsmart the other spouse so that they end up with larger portion of the pie. ATROs, in fact, are not limited to divorce cases but also apply to legal separation actions and nullity actions. ATROs stay in effect until entry of the final judgment in the case is signed by the judge and filed with the court.
The four standard mutual restraining orders:
- Removing their minor children from the state without prior written consent of the other party or a court order. Family Code (FC) Section 2040(a)(1)
- Restraint from transferring, encumbering, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate without the other party’s written consent or court order FC Section 2040 (a)(2)
- Restraint 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 for whom orders may be orders (FC Section 2040 (a)(3)
- Restraint from creating, modifying a non-probate transfer in a manner that affects the disposition of property without written consent or court order FC Section 2040 (a)(4).
There are limitations to the above restrictions. One exception is for property transfers in the usual course of business or for the necessities of life. Another exception is payment of reasonable attorney’s fees. FC 2040 (a)(2).
A violation of the ATROs may be remedied by awarding the aggrieved spouse his/her 50% of the community property that the spouse would have received had the property not been transferred. (Marriage of McTiernan and FC 1101(g)).
A violation of the child-move away restriction is punishable by fine and/or imprisonment (Penal Code (PC) Section 278.5). Any other violation would be punishable by contempt, fine, and/or imprisonment (PC Section 273.6).
If you want to discuss further, feel free to email me at carina@ciclawfirm or call my office at 310-601-7144.