Automatic Restraining Orders in Divorce
In a family law matter, the family law summons contains automatic restraining orders on the 2d page of the summons. These automatic restraining orders (referred to as ATROS and pronounced at-röse) take effect immediately against the petitioner upon issuance of the summons and take effect immediately against the respondent upon service of the petition on the respondent. These ATROS should be taken every bit as seriously as any other court-issued restraining order as the court enforces ATROS equally. InGoold v. Superior Court(2006) 145 Cal. App. 4th 1, the court sanctioned and incarcerated a husband for repeated violations of the ATROS. InMarriage of McTiernan & Dubrow(2005) 133 Cal. App. 4th 1090, the court awarded the wife one-half of the lost profits from husband's sale of community securities that were sold by husband without written consent or court order.
The ATROS restrain either party from taking several enumerated actions, which are explained in further detail below:
1) The parties are restrained from removing the minor children from the state of California without the prior written consent of the other party or an order of the court. I have seen other parties and even other attorneys attempt to argue that "remove" means a relocation rather than an out-of-state visit. Due to the lack of case law interpreting this specific ATRO, I err on the side of caution in my practice and instruct my clients not to take the children out of the state of California, for any purpose, without first obtaining written consent of the other parent or a court order.
2) The parties are restrained from: (a) transferring (example - gifting, selling, bequeathing, etc.). Note - having a "garage sale" during a divorce and selling anything without the other party's written consent is a very typical "no-no" (yes that is legal jargon); (b) encumbering (example - borrowing against, putting at-risk, or using as collateral). Note - using a pre-established HELOC during a divorce without the other party's written consent is "no-no"; (c) hypothecating (does anyone really know what this means? Actually, it means to pledge something as collateral in order to secure a debt. an example would be taking a wedding ring to a pawn shop); (d) concealing (example - moving to a storage facility without notice and access to other party). Note - opening up a safety deposit box to protect certain things during a divorce without notifying other other spouse is a "no-no"; (e) or in any way disposing of any property (this is general to allow liberal interpretation); (1) real; or (2) personal; whether (i) community; (ii) quasi-community (property outside of California); or (iii) separate (yes - even your own separate property!)
without the written consent of the other party or an order of the court…except… (A) in the usual course of business (and the party had better be able to prove to the court how their action falls within this category); or (B) for the necessities of life (example - party can sell an asset for fair market value in order to feed your children before a support order is in place if your spouse is not voluntarily supporting party and kids - the key is that it must be sold at "fair market value"), and (C) requiring each party to notify the other party of any proposed extraordinary expenditures at least five business days before incurring those expenditures and to account to the court for all extraordinary expenditures made after service of the summons on that party. (Pretty self-explanatory).
However, the ATROS do not prevent the following types of actions:
1) A party may use community funds and that party's separate funds to pay for reasonable attorney's fees and costs in a dissolution or legal separation proceeding but an accounting must be made for such;
2) creation, modification or revocation of a will (I always stress to my clients that they create a "divorce will" while the divorce is pending and then amend their divorce will after the divorce if necessary. A divorce will can provide some (but not all) protection in the event that the party dies during a dissolution in that at least they can designate someone other than their spouse to inherit their share of community assets;
3) Revocation of a nonprobate transfer, including a revocable trust, pursuant to the instrument, provided that notice of the change is filed and served on the other party before the change takes effect. A 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, transfer on death registration of personal property, or other instrument of a type described in Section 5000 of the Probate Code. A nonprobate transfer does not include a provision for the transfer of property on 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, to the extent that the provision is subject to paragraph (3) of subdivision.
4) Elimination of a right of survivorship to property, provided that notice of the change is filed and served on the other party before the change takes effect; 5) Creation of an unfunded revocable or irrevocable trust.
If you are contemplating divorce, or have additional questions about what actions you may take while a divorce or legal separation is pending, please call Robin Huggins at (949)261-7700. Ms. Huggins is a partner in the Family Law Department of Kring & Chung, LLP, and she practices out of the Irvine and RSM offices. Kring & Chung, LLP, also has family law practitioners in their Inland Empire and Las Vegas, Nevada offices.