If you answered yes to either of those questions, then you are bound by a group of automatic temporary restraining orders (“ATROS”) that are designed to to maintain the status quo while your divorce case is winding its way through the courts.
In short, the ATROS are mutual Orders that take effect when you start your divorce and remain in effect until there is a final judgment in your case. Basically, the ATROS will hold in place your parental and financial status, preventing you or your spouse from changing your situation after a Petition has been filed.
In this article, we will tell you what the ATROS will prevent and what they will allow you to do and how to hold your spouse to that same standard.
Where can I find the ATROS?
You can find the ATROS on the second page of the divorce Summons (FL-110). The Summons is one of several forms you must fill out, file with the court, and serve on your spouse to start your divorce.
If you are the spouse that files for divorce, it is very important that you actually read the ATROS very carefully and understand what they mean. In fact, when you sign the divorce Petition, you will be asked to declare under penalty of perjury that you have read and understood that the ATROS apply to you.
Any spouse who files for divorce will be bound by the ATROS as soon as they file the Petition and Summons with the court. On the other hand, if you are not the spouse who filed for divorce, but rather you are the spouse who is served with the Petition and Summons, you are bound by the ATROS after you are served with the Summons.
In truth, it is extremely rare for a spouse to actually read the ATROS. In practice, experienced Orange County divorce attorneys will usually explain the ATROS to their clients.
Some will even require that their clients initial next to the ATROS on the Summons to prove that their clients read and understood the serious consequences should their client violate any of the terms of the ATROS.
What do the ATROS prevent?
The ATROS are designed to protect both parties and maintain the status quo during your case.
The Summons reflects the language of California Family Code Section 2040, which states:
2040. (a) …the summons shall contain a temporary restraining order:
(1) Restraining both parties from removing the minor child or children of the parties, if any, from the state, or from applying for a new or replacement passport for the minor child or children, without the prior written consent of the other party or an order of the court.
(2) Restraining both parties from transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life, and requiring each party to notify the other party of any proposed extraordinary expenditures at least five business days before incurring those expenditures and to account to the court for all extraordinary expenditures made after service of the summons on that party.
Notwithstanding the foregoing, 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.
(3) Restraining both parties 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.
(4) Restraining both parties 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.
(b) Nothing in this section restrains any of the following:
(1) Creation, modification, or revocation of a will.
(2) 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.
(3) 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.
(4) Creation of an unfunded revocable or irrevocable trust.
Let’s look in detail at each section.
The minor children cannot be removed from California.
The ATROS prevents either parent from removing the children from California. The purpose of this section in the ATROS is to prevent a parent from illegally abducting the children and going to another state, preventing the other parent from having access to the children.
What can you do if you want to take your son or daughter on a trip to Colorado to see your parents? One way is by getting the prior written consent of the other parent. Ask them if they will agree. It will probably be in their best interest. Remember, the time may come when they will want to take the children out of state and they will need your permission.
What can I do if the other parent just won’t agree to let them go with me to see my parents in Colorado? As with most things, you can go to court to get a court order to allow you to take the kids with you.
This section of the ATROS also prevent the parents from applying for a new or replacement passport for the children.
You cannot engage in certain property transactions
Because of the ATROS, you are prohibited from transferring, encumbering, hypothecating, concealing, or in any way disposing of, any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, unless it is in the usual course of business or for the necessities of life.
Again, that is without a court order or the consent of your spouse.
To summarize, there are many things you cannot do with your property or money. In short, you cannot:
◆ You cannot give away any of your property.
◆ You cannot spend your money, unless it is for the necessities of life.
◆ You cannot take a loan out (including a home equity line of credit or a second mortgage) on your property.
◆ You cannot pledge any of your property as collateral on a loan.
◆ You cannot take out all of the funds in a joint checking or savings account.
There are several important exceptions to the rule.
First, you are not prohibited from using your funds if any of your actions are taken “in the usual course of business.”
For example, if you are a day trader in stocks, you would probably be allowed to buy and sell stocks for your personal account. Most likely, your business would be that of a “day trader” of stocks. As long as your normal business was trading stocks then buying and selling would be in the usual course of business.
The second major exception is that you are allowed to engage in transactions “for the necessities of life.” You can buy groceries or pay your electricity bills. Although somewhat vague, you can use your funds to pay the normal and expected daily costs of living.
In addition, you must notify your spouse of any proposed “extraordinary expenditures” at least five business days before those expenditures are made.
The final exception is for paying your attorney’s fees. Under this exception, you may pay reasonable attorney’s fees and costs in order to retain legal counsel in your divorce case. If it is later found that you used community funds or your spouse’s separate funds for attorney’s fees, you must account for them.
The ATROS prevent you from taking certain actions with insurance policies
This ATROS prevents either spouse 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.”
In general, this specific ATROS prevents you from doing anything that would change your insurance situation. When you go through your divorce, for example, your spouse may try to remove you from your health or auto insurance policy. Quite simply, this would be a violation of the ATROS.
For example, this automatic temporary restraining order will prevent you or your spouse from:
◆ Changing the beneficiaries on your life insurance policies;
◆ Removing your spouse from your automobile insurance policy;
◆ Removing your children or your spouse from your health insurance policy;
◆ Cashing in your whole life insurance policy or annuity.
Even though you cannot remove your spouse from your auto insurance, you will be entitled to reimbursement for any amount you pay for them.
The ATROS prohibits certain nonprobate transfers
Without your spouse’s written consent or an Order from the court, the ATROS prevents you from creating or changing a nonprobate transfer in a way that alters the disposition of property subject to the transfer.
So what is a nonprobate transfer?
A nonprobate transfer is a transfer of property that occurs on your death and that passes property to a beneficiary outside of regular probate channels. A Will, for example, is not a nonprobate transfer because it will go through the regular probate channel.
This ATROS prevents you from creating or changing the following types of nonprobate instruments:
◆ Financial institutions (like a bank) pay on death account;
◆ Totten trust; or
◆ A revocable trust.
Many common estate planning planning actions are specifically allowed in the ATROS. These include:
◆ Creating or changing your Will;
◆ 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.
Please consult an experienced estate planning lawyer before you try to change your estate plan. Check out our Resource Page for local professionals.
What is NOT a violation of the ATROS:
Here is a summary of a few of the things you can do that are not considered a violation of the ATROS:
1. You can pay your lawyer. You can pay your attorney reasonable attorney’s fees and/or give your attorney a lien by way of a Family Law Attorney Real Property Lien. Although if you use community property funds to pay your lawyer, you must account for use of the funds.
2. You can severe a joint tenancy or eliminate a right of survivorship to property. Be sure to provide notice of the change to your spouse before the change takes effect. Typically, you should severe any joint tenancy because if property, such as your house, is held by you and your spouse in joint tenancy and you die before your divorce is final, your spouse will inherit the house.
3. You can create, change or revoke your Will.
4. In the “usual course of business” you can buy or sell property. Courts will examine whether you have a bona fide business, and not a hobby, and if it was a purchase or sale that was normally something your business actually does. For example, a businessperson who buys and sells real estate would probably be allowed to sell one of their holdings.
What happens if my spouse violates the ATROS?
Now we understand what the ATROS prevents, but what happens if my spouse violates one of the orders?
In many cases we have seen, some divorcing spouses don’t read the ATROS, don’t understand them or simply ignore the their provisions. But they should take the time to understand them. And because of the potential steep penalties, they should abide by their restrictions.
Although rarely enforced, potentially violating the ATROS can mean that you will have to pay big fines, attorney’s fees and even possibly face jail time.
For example, California Family Code Section 233 states:
233 (c) A willful and knowing violation of the order included in the summons by removing a child from the state without the written consent of the other party or an order of the court is punishable as provided in Section 278.5 of the Penal Code. A willful and knowing violation of any of the other orders included in the summons is punishable as provided in Section 273.6 of the Penal Code.
And California Penal Code section 278.5 provides the penalty for taking a child out of California as follows:
278.5. (a) Every person who takes, entices away, keeps, withholds, or conceals a child and maliciously deprives a lawful custodian of a right to custody, or a person of a right to visitation, shall be punished by imprisonment in a county jail not exceeding one year, a fine not exceeding one thousand dollars ($1,000), or both that fine and imprisonment, or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years, a fine not exceeding ten thousand dollars ($10,000), or both that fine and imprisonment.
(b) Nothing contained in this section limits the court’s contempt power.
Violating any other ATROS could be a violation punishable by California Penal Code Section 273.6, which says:
273.6. (a) Any intentional and knowing violation of [an ATROS] is a misdemeanor punishable by a fine of not more than one thousand dollars ($1,000), or by imprisonment in a county jail for not more than one year, or by both that fine and imprisonment.
So, violating the ATROS can have severe consequences. Make sure that your Orange County divorce attorney knows all about the violation and does everything possible to bring it to the court’s attention for possible enforcement and punishment.