Divorce restraining orders. What orders are in effect?
ATROs, is a short for “Automatic Temporary Restraining Orders” which are mutual orders that go into effect when you start your divorce. The orders remain in effect until there is a final judgment in your case. Basically, these orders hold in place your parental and financial status, preventing you and your spouse from changing your situation.
You can find out exactly what ATROs cover on the second page of your divorce Summons (FL-110). You need to read the summon when you are filing for divorce. Remember, 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. When you file for divorce, you will be bound by the ATROs as soon as you file your Petition and Summons with the court. If you are not the spouse who filed for divorce, but rather you are the spouse who is served, you are bound by the ATROS once you receive a copy of the Petition and Summons.
We have children. Can I take them on vacation? Can I take them to see their grandparents? Can I take them to another state?
ATROs restrain both you and your spouse from removing any minor child from the State of California. You cannot apply for a new or replacement passport for any minor child unless you have the other parent’s consent or a court order. The purpose of this restraint is to prevent you or your spouse from illegally abducting a child and going to another state. By moving a child you would be preventing the other parent from having access to them.
We have a house. I have a bank account. Can I give away property? Can I change bank accounts? Can I sell the house?
You cannot transfer, encumber, hypothecate, conceal, or in any way dispose of any property. This includes any real or personal property unless you have the written consent of your spouse or a court order. You cannot pledge any of your property as collateral on a loan. In short, you cannot give away any of your property or spend money, take a loan out, or remove all of the funds in a joint checking or savings account.
Usual Course of Business
I need money to pay bills. Can I take money from our bank account? Can I get money for an attorney?
You are not prohibited from using your funds if any of your actions are taken “in the usual course of business.” This means that you can use both community and separate property for a business you may own or operate. However, you will still have to notify your spouse of any proposed “extraordinary expenditures” at least five business days before those expenditures are made. 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 business person who buys and sells real estate would probably be allowed to sell one of their holdings.
Necessities of Life
I need money to survive. Can I spend the money in our joint account?
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. You must notify your spouse of any proposed “extraordinary expenditures” at least five business days before those expenditures are made.
I need an attorney. Can I use our money to pay my attorney?
You can use community property, quasi-community property, or you own separate property to pay reasonable attorney’s fees and costs to litigate your matter. You can use funds to pay 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. You can 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.
I need medical insurance. I need auto insurance. Can I cancel an insurance policy?
You cannot cash out, borrow against, cancel, transfer, dispose of, or change the beneficiaries of any insurance or other coverage. This includes life, health, automobile and disability insurance held for the benefit your spouse or children. Changing the beneficiaries on your life insurance policies is prohibited. Removing your spouse from your automobile insurance policy is prohibited. You must keep your spouse and your children on any health insurance policy. Cashing in your whole life insurance policy or annuity is prohibited.
You are restrained for from creating a nonprobate transfer or modifying a nonprobate transfer that will affects the disposition of property subject to the transfer. You can make such transfers if you have the consent of your spouse or a court order. 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. This ATRO prevents you from creating or changing any payable on death account, Totten trust or revocable trust.
Wills & Trusts
ATROs do not prevent you from creating, modifying or revoking your will. You can revoke a nonprobate transfer, including a revocable trust. You can create an unfunded revocable or irrevocable trust. Unfunded means that you have yet to transfer property into the trust. However, should you do so, you will have to provide notice of the change and serve it on your spouse before the change takes effect.
Joint Tenancy and Right of Survivorship to Property
You can eliminate your spouse’s right of survivorship to property if you give your spouse notice of the change before it takes effect. You can severe a joint tenancy if you give your spouse notice before the change takes effect. Eliminating a right to survivorship prevents you spouse from receiving property should you pass away. Severing a joint tenancy prevents your spouse from inheriting should you die before your divorce is finalized.
ATRO Violation Penalties
You can face fines and possible imprisonment should you take your child out of state. Punishment includes imprisonment up to one year, a fine of up to $1,000, or both. Remember, that violations are misdemeanor offenses.
Contempt and ATROS
If your spouse violated an ATRO, they may be found in contempt of court. The burden falls on you to file a motion for contempt. In your motion, you will have to prove that a violation was willful and intentional. Remember, there are exceptions. If you can prove your spouse is guilty of contempt, the judge will order “sanctions,” (punishment). Sanctions can range from attorney’s fees, restitution, and/or reimbursements.
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