Automatic Temporary Restraining Orders

The name is not exactly what it appears. When many people hear “Restraining Order” they are likely to instantly think of domestic violence. Although restraining orders are often mentioned or arise in the context of domestic violence, they also come up in the context of filing for divorce. Automatic Temporary Restraining Orders (ATRO’s) are included and imposed upon both parties in every single divorce. However, they have nothing to do with violence and everything to do with property and children. In essence, ATRO’s are set in place to keep parties from unfairly taking unilateral action that might negatively impact the community estate or either parties’ rights as a parent.

The ATRO’s, which are written on the back of every Summons (form FL-100) accompanying a Petition for Dissolution, are governed by Family Code Section 2040(a) which prevents and restrains either party from doing any of the following:

  1. Removing the minor child(ren) of the parties from the state or applying for a new or replacement passport for the minor child(ren) without prior written consent of the other party or an order of the court;
  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.
  3. Note: each party must notify one another of any proposed extraordinary expenditures at least five business days before incurring those expenditures and to account to the court for all such expenditures made after service of the summons on that party.

    Also note that the Code states that nothing in this section prevents a party from using community property, quasi-community property, or the party’s own separate property to pay reasonable attorney’s fees and costs in order to retain legal counsel in the proceeding. A party who uses community property or quasi-community property to pay his or her attorney’s retainer for fees and costs under this provision shall account to the community for the use of the property. A party who uses other property that is subsequently determined to be the separate property of the other party to pay his or her attorney’s retainer for fees and costs under this provision shall account to the other party for the use of the property.

  4. 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.
  5. 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.

One of the most important things to note about ATROs is when they take effect. ATRO’s take effect for the Petitioner upon filing. However, they do not take effect for the Respondent until served with the Summons and Petition. While many might ignore the importance of the ATRO’s they are more relevant than many parties might think. It is extremely common for clients to ask questions such as “can I take my husband/wife off of my health insurance plan?” or “can’t I just take the kids and go see my parents in Michigan?” These questions are answered on the back of the Summons. However, it is not uncommon for parties to not realize they have the answers for failure to carefully review these documents.

It is key for parties to keep in mind that the ATRO’s go to each party’s fiduciary duties owed to one another. As such, it is never a good idea for the Petitioner to go out and take a large chunk of money out of the community’s joint account or sell an item of significant value right before filing. Such conduct would clearly be considered a breach of that parties’ fiduciary duties. Here at Mello & Pickering, LLP with 40 years combined experience, we can help you through the process of your divorce and ensure that you get through your divorce as efficiently as possible.

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