Written by attorney Daniel Victor Burke

California Automatic Restraining Orders Exist in all California Divorces

Temporary Restraining Orders - Automatically applicable in all Cases

California Family Code Section 2040 provides that certain orders automatically go into effect upon the filing of a Petition for Dissolution, Legal Separation or Nullity. “[T]he temporary restraining order under this part shall be in effect against the parties until the final judgment is entered or the petition is dismissed, or until further order of the court." (California Family Code Section 233 (a)) The person filing the action is immediately required to comply with the orders when he or she files the Petition to Dissolve the Marriage. The other spouse is subject to these orders starting the moment he or she is served with the Summons. The automatic orders contained on the summons restrain both parties: a. From removing their minor child from the state without the prior written consent of the other party or an order of the court. b. From “transferring, encumbering, hypothecating, concealing, or in any way disposing of" any real or personal property, 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. c. 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. d. From creating a nonprobate transfer or modifying a nonprobate 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.

Exceptions to the Restraining Orders: a. A party is permitted to use any property or debt to pay reasonable attorney’s fees and costs in order to retain legal counsel in the proceeding. b. A party is permitted to create a will or modify existing will. c. A party is permitted to revoke a revocable trust, pursuant to the trust instrument terms, provided that notice of the change is filed and served on the other party before the change takes effect.

If you think you need special protections because of special concerns then you may ask the Court to assist by entering different orders:

“Nothing in this part precludes either party from applying to the court for modification or revocation of the temporary restraining order provided for in this part or for further temporary orders or an expanded temporary ex parte order." (California Family Code Section 235)

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