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What Are Automatic Temporary Restraining Orders?

It may certainly be that the first few steps an individual wants to take after he or she files for divorce are to clean out the joint bank account, sell all the marital property, kidnap the dog, and read the newest self-help guide to divorce.  Unfortunately, under California law, only the last option is permissible. Most divorce litigants are surprised to discover that when a divorce matter commences, restraining orders are automatically activated which prevent parties from engaging in certain behaviors.  These temporary restraining orders are called the Automatic Temporary Restraining Orders (“ATROS”).  In this article, we will discuss 1) the definition of the ATROS; 2) the restraints the ATROS provide, and 3) how the ATROS are enforced and potential penalties regarding the same.

Definition of the ATROS

The ATROS are a series of civil orders that affect any party in any action involving dissolution, legal separation, dissolution of registered domestic partnership, or nullity of marriage.  The California Legislature enacted the ATROS on January 1, 1994, and codified the same in the Family Code.   The purpose of these orders is to prevent parties involved in dissolution matters from engaging in retaliatory behavior against the other party that may result from the high emotional tension that is often present during this process.

The ATROS are not a part of criminal law. However, failure to abide by them may result in civil and/or criminal penalties.  The ATROS are listed on page 2 of the Summons form, which is included in a Petitioner’s filing of a Petition for Dissolution (“Petition”).  Upon the filing of a Petition, the ATROS automatically restrain the Petitioner. Once the Petitioner serves the Respondent with the Petition, the ATROS are automatically binding upon the Respondent.  The ATROS do not expire until further order of the Court, or until a final Judgment resolving all issues has been entered.

Restraining Orders

There are five main behaviors in which the parties are restrained from engaging during the dissolution process.

  • Children

First, both parties are restrained from removing any minor child(ren) from California, unless both parties agree to the same in writing or a court order.  

Second, both parties cannot apply for a new or replacement passport for any minor child(ren) of the parties, unless both parties agree to the same in writing or the court makes an order allowing a party to replace the passport.

  • Property

Both parties are prohibited from transferring, encumbering, hypothecating, concealing, or disposing of any real or personal property in any way, unless both parties agree to the same in writing or the court makes an order allowing a specific action.  It does not matter whether the property is one party’s separate property or the parties’ community property. In other words, the condition of the property, whether community or separate, should stay the same after separation pending a written agreement by both parties or further order of the court.

The only exception to this provision is if reasonable action is needed to continue with the regular course of business or for life’s necessities.  For example, if a couple acquired a business together during marriage, the business must continue to operate after the parties’ separation. Therefore, any common deposits, withdrawals, business contracts, etc. that are completed within the normal course of business are permissible under the ATROS.  However, if an extraordinary expenditure is required during the normal course of business, each party should be advised of the expense at least five business days prior to incurring the same, and the parties must account for or keep track of that expenditure. For example, if the company car from the parties’ business needs to be replaced due to an accident, this may be considered an extraordinary expense that is necessary to keep the business operational.  Therefore, before the purchase is made, each party must be aware of the same. This does not mean that each party needs to agree to the expenditure.

Each party is restrained from cashing out, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of other coverage, including but not limited to that related to life, health, automobile, and disability insurance.  This means that if Wife carried Husband on her health insurance and paid for any other coverage for him and/or the family, she must continue to maintain all coverage until a written agreement between the parties provides otherwise, or further court order.

  • Non-Probate Transfers

Finally, the parties cannot create a non-probate transfer or modify a non-probate transfer in a manner that will affect the disposition of property subject to the transfer, without the other party’s consent or further order of the court.  A “non-probate transfer” is an instrument that makes a transfer of property on death. Such instruments most commonly include a beneficiary designation on a retirement or investment account.

This section does not mean that the parties are restrained from engaging in the following practices: 1) creation, modification, or revocation of a will; 2) Revocation of a non-probate transfer; 3) elimination of a right of survivorship to property; 4) creation of an unfounded revocable or irrevocable trust; 5) execution and filing of disclaimer under Probate Code Sections 260-295.

Should you have any further questions regarding non-probate transfers, we recommend that you consult your probate and/or estate planning attorney.

  • Exceptions

There is one exception to the above-mentioned restraining orders.  Neither party is restrained from using community property or her own separate property funds to pay her reasonable attorney’s fees and costs.  The Family Code provides that each party to a dissolution action has the right to have access to ample funds to obtain legal representation.  Nevertheless, if the parties do use community or separate property for their attorney’s fees and costs, they must provide an accounting to the other regarding the same.

As a reminder, the ATROS do not serve as a “ceiling,” but rather a floor, as to what the parties are restrained from doing during the pendency of divorce.  Upon further order from the court or written agreement by the parties, the parties can modify the ATROS, or create additional ATROS depending on the specific situation.

Enforcement

If a party violates the ATROS, there are consequences pertaining to the actions of that party.  Keep in mind that third-party individuals are not bound by the ATROS, even though at times it may appear that they would be.  For example, a Husband who has filed for dissolution cannot go to Wells Fargo and withdraw all the funds from the joint bank account.  Husband is bound by the ATROS. However, if Husband does choose to violate the ATROS and withdraws from the joint bank account, Wells Fargo is not obligated to stop him without a court order regarding the same.

This begs the question: How serious are the ATROS and what are the penalties if a party breaches these restraining orders?  The answer is that a party’s violations of the ATROS could result in civil or criminal penalties or both.

Penalties Under the California Penal Code

If a party willingly and knowingly violates the first prong of the ATROS and removes a child from the state of California without consent from the other party, or a court order, she is subject to criminal penalties set forth in the California Penal Code.   In that section, if a Court finds that a party violated the ATROS in this regard, she shall be subject to civil and criminal penalties, which may include imprisonment.

Further, if a party willfully and knowingly breaches the other orders regarding property and probate as it relates to 1) other orders involving domestic violence under the Family Code; 2) excluding a person from a dwelling under the Family Code; or 3) other specified behavior under the Family Code, a party shall be subject to civil and criminal penalties, which may include imprisonment.

Penalties Under the Family Code

Pursuant to the Family Code, if a party violates the ATROS, he could also be found in “contempt” of court.  This means that a party has willfully disobeyed the law. If a party is found in contempt of court for violating the ATROS, he or she could be subject to civil penalties, criminal penalties, or both.

Further, in the event that a party violates the ATROS without intending to do so, which results in an impairment of the other spouse’s undivided one-half interest of the community property, that Court may find that the party breached his or her fiduciary duty to the other to maintain community assets. Therefore, the impaired spouse becomes eligible for fiduciary duty remedies under the Family Code.

Conclusion

ATROS often go unacknowledged and missed on the Summons as part of a Dissolution Petition.  However, they serve an important purpose to ensure that parties do not leave the other “high and dry” during the pendency of the dissolution action.  As mentioned above, the orders outline many specific restraints on parties. If a party violates these restraining orders, he or she may be subjected to an array of potential penalties.  We urge you to become educated on the ATROS by seeking the counsel of the Bremer Whyte Brown and O’Meara family law team to guide you through this process.