Automatic Temporary Restraining Orders (sometimes referred to as “ATROS”) are mutual Orders that become immediately effective upon service of a summons issued in a dissolution, legal separation, nullity or paternity action. ATROS are summarized on the back of the Summons of a Petition for Dissolution.
ATROS remain in effect until a final judgment is entered, the petition is dismissed, or there is a Court Order for termination.
ATROS prevent BOTH parties from doing the following:
1. 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.
- This does not apply in situations where the child is already living in another state when the petition is filed, nor does it require that a child be returned to California if he or she is not living here at the time of the petition.
2. 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.
- You may not take out a loan on community property.
- You may not “hypothocate” community property, i.e. pledging property as security or collateral for a debt. Although title or possession of the property is not transferred to the lender, the lender has the right to sell the property upon default.
- You may not close a joint checking account and transfer the money into your own separate account.
- You may not remove items from your safe deposit box or cash from your safe and give them to a third party to hold for you.
3. 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.
- You many not cash in your life insurance policy and deposit the proceeds into a separate account.
- You may not change the beneficiary to your life insurance policy.
- You may not remove your spouse or children from the health, dental or vision insurance policy.
- You may not remove your spouse from your automobile insurance policy even if you are not living together.
In addition, each party must notify the other of any proposed extraordinary expenditures at least five business days prior to incurring those expenses and must account to the court for all extraordinary expenditures made after the restraining orders are effective.
The following are NOT considered violations of the ATROS:
- Payment of Attorney Fees: A party is permitted to use any property to pay reasonable attorney’s fees and costs in order to retain legal counsel as well as encumber his or her community interest in community real property to secure legal counsel via a Family Law Attorney Real Property Lien. However, the party using community funds must account for the use of said funds to the other and, in the case of a Family Law Attorney Real Property Lien, provide notice to the other party.
- Wills: Parties are not restrained from creating, modifying, or revoking a will; creating an unfunded trust; executing and filing a disclaimer of testamentary and other interests, or revoking a nonprobate transfer (including a revocable trust), as long as notice of the change is filed and served on the other party before it takes effect. “Nonprobate transfer” means an instrument, other than a will, that makes a transfer of property on death, including a revocable trust, pay on death account in a financial institution, Totten trust, or transfer on death registration of personal property. It does not include a provision for the transfer of property upon death in an insurance policy or other coverage held for the benefit of the parties and their child or children for whom support may be ordered.
- Severing a joint tenancy or elimination of a right of survivorship to property during the pendency of a dissolution action is not considered a violation of the ATROS provided that notice of the change is filed and served on the other party before the change takes effect.
- In some cases disposing of property is allowed if done in the “usual course of business.” However, Courts will look at the nature of the business and whether it is a bona fide business. A sale by a professional investor whose job it is to turn a profit with his/her funds would qualify under this exception, whereas a sale by someone else might not.
Either party may apply to the Court for modification, revocation or expansion of any of the ATROS. These ATROS can be modified until the divorce is final. Different orders will be put into effect when your divorce is finalized by the Court.