What are Automatic Temporary Restraining Orders (ATROs)?
In a divorce or legal separation case, the spouse who files the petition in court and has the other spouse served with the summons is called the “petitioner.” Once the summons is served, the petitioner is immediately subject to the automatic temporary restraining orders (also known as ATROs). The ATROs are spelled out on page two of the summons (judicial council form FL-110) and California Family Code section 2040. When the other spouse (called the “respondent”) is served with the petition and summons, he or she is also bound by the ATROs. These orders remain in place until the court enters a judgment, the case is dismissed, or the court makes a terminating order.
What is the purpose of ATROs?
ATROs are designed to protect both spouses and to preserve the status quo of the spouses while their case progresses through the court process. As set forth in more detail below, the ATROs are designed to prevent certain common issues from arising.
What do ATROs prohibit?
1. The ATROs prohibit either party from taking the parties’ minor children out of state without prior written authorization of the other party or a court order. Further, neither party can apply for a new or replacement passport for the minor children without first getting written consent from the other party or a court order.
If the court finds that one party willfully and knowingly violated this ATRO, it has the ability to impose a punishment of imprisonment and a maximum fine of $10,000. (California Family Code section 233.)
2. Neither spouse can transfer, encumber, hypothecate (pledge property as security or collateral for debt), conceal, or dispose of real or personal property without the other spouse’s written consent or a court order. This ATRO applies to community, quasi-community and separate property. It is important to remember that a violation of this ATRO may be found even if a spouse did not act with malicious intent. For example, in the case of Marriage of McTiernan & Debrow (2005) 133 Cal.App.4th 1090, 1102-1103, Husband sold community property stock without Wife’s consent. Soon after, the stock’s market price rose in value. Even though the court believed Husband sold the securities to pay community expenses, Husband failed to first get Wife’s consent or the court’s approval. As restitution, the court ordered Husband to reimburse Wife her share (50%) of the lost profits, valuing the stock as of the date the divorce trial began.
There is an exception for property used in the “usual course of business” or for the “necessities of life.” Therefore, while selling the marital home would almost certainly violate an ATRO, withdrawing $200 from a joint checking account to pay for weekly groceries and gas would almost certainly be permitted. Your attorney can guide you as to what type of transactions are considered to be in the “usual course of business” or for the “necessities of life” as these terms must be evaluated within the context of each individual case.
3. A party may not cash out, borrow against, cancel, transfer, dispose of, or change the beneficiary of an insurance policy or other coverage policy that is held for the benefit of the parties and/or their minor children. The covered insurance policies include life insurance, health insurance, automobile insurance, and disability insurance.
4. A spouse may not create or modify a nonprobate transfer in a way that impacts the disposition of property without the other party’s written consent or a court order. A will is a probate transfer. A nonprobate transfer is an instrument (other than a will) that transfers property upon death. Some examples include a revocable trust, a totten trust, and a transfer on death registration of personal property. Other nonprobate transfer instruments are set forth in Probate Code section 5000.
In other words, you are allowed to create, modify or revoke your will after you or your spouse files for divorce or legal separation. Further, you are allowed to revoke a revocable trust if you file notice of that change with the court and serve notice of that change on your spouse; and you may name a new trustee (so long as the trustee’s powers or duties regarding property held in the trust do not change). However, you are not allowed to change the beneficiary of your trust.
5. Each party must notify the other of any proposed extraordinary expenditures at least five business days before incurring such expenses. Further, each party must be prepared to provide the court with an accounting for any extraordinary expenditure made after the ATROs take effect. Therefore, it is safest to keep documentation of such expenditures.
Are ATROS modifiable?
Yes. You may ask the Court to modify, revoke, or expand any of the ATROs and the Court may modify any ATRO until your divorce is final. Your attorney can provide expert guidance on what types of modifications the Court will likely allow.