by Attorney Tana Landau
Family law attorneys use the term “ATROs” to refer to Automatic Temporary Restraining Orders that are summarized on the back of a summons for a Petition for Dissolution of Marriage or Domestic Partnership, Legal Separation, or Nullity of Marriage.
These are mutual orders that become effective upon the filing party immediately and upon the non-filing party when the Petition and Summons are served. The back of the summons sets forth the language of the ATROs exactly as stated in the California Family Code. These mutual restraining orders remain in effect until entry of the final judgment, dismissal of the petition, or further Court order.
Most people do not bother to read them, and that’s why a good family law attorney will explain them at the outset of your case (as there are penalties for violating them).
What do the ATROS prevent?
They prevent both parties from removing the minor child or children of the parties, if any, from the state without the prior written consent of the other party or an order of the court.
You cannot transfer, encumber, hypothecate, conceal, or in any way dispose 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.
This prohibits for example a party from closing accounts and transferring funds to another account, taking out loans on property, or pledging property as security or collateral for a debt with the express written consent of the other party.
In addition, the ATROs restrain either party 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.
For example, you would be prohibited from cashing in a life insurance policy or changing the beneficiary on the policy without written consent. You also cannot remove your spouse or children from any health or automobile insurance.
Finally, the ATROs restrains both parties from creating a non-probate transfer or modifying a non-probate 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 A “non-probate transfer” is an instrument that makes a transfer of property on death. This most commonly includes a beneficiary designation on a retirement or investment account.
What do they not prevent?
The ATROs do not prevent you from using any type of property to pay reasonable attorney’s fees and costs to retain counsel. You can also encumber your community interest in property to secure counsel through a Family Law Real Property Lien with notice to the other party.
The ATROs also don’t apply to the creation, modification, or revocation of a will, creation of unfunded trust, execution of a disclaimer, of testamentary interests, or revocation of a non-probate transfer such as a revocable trust as long as notice is filed and served on the other party beforehand.
You can also sever a joint tenancy or revoke the right to survivorship if you file and serve notice to the other party. The most abused exception to the ATROs is the ability to dispose of property in the usual course of business or for the necessities of life. The Court will look to whether the transaction was bona fide in terms of the usual course of business or it being a necessity of life.
It is best to consult with an attorney as to whether a particular transaction you are considering falls into the exception.