ATROS -Automatic Temporary Restraining Orders in California
WHAT ARE ATROS
ATROS (Automatic Temporary Restraining Orders) are orders that are automatically put into effect at the start of a dissolution of marriage or partnership, or legal separation. They are mutual and effectively prevent either party from “hitting back” at the other as a result of the period of emotional instability which often occurs during a divorce.
The terms of California ATROS are set out in Family Code section 2040 and the Summons form FL-110. They are effective against both parties “until the petition is dismissed, a judgment is entered, or the court makes further orders.” Any law enforcement officer who has received, or seen a copy of, the restraining orders can enforce them anywhere in California.
What counts as a violation of ATROS?
When ATROS take effect, both parties in a divorce or legal separation are prohibited from:
- Removing any minor children of the parties from the state without prior written consent from the other party, or court order.
If any minor children of the party are already living out of state when the divorce or separation commences, this does not apply and they are not required to return to California.
Applying for a new/replacement passport for any minor children of the parties without prior written consent from the other party, or a court order.
Cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance policy or other coverage.
This includes life, health, automobile, and disability insurance held for the benefit of the parties and any minor children.
Neither party can cash in a life insurance policy or retirement account to gain access to the accumulated funds. Neither party can cancel, or take their spouse or children off of, an insurance policy. It is also not possible for either party to change the beneficiary of a life insurance policy.
Many people who are going through a divorce or separation may wish to make immediate changes to their insurance policies, as they can no longer afford them without the support of two incomes. Don’t worry, the court will take this into account, and will reimburse the party paying for the insurance policies towards the end of the process.
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.
Hypothecating is the act of pledging collateral to secure a debt, e.g. once ATROS are put into effect, a party is not allowed to offer their car to a lender to be granted a loan. It is also not allowed for either party to close a joint account and transfer the funds into their own account, or to transfer any property to a third party to hold for them. Taking out any loans on community property, such as a second mortgage, also counts as an ATROS violation.
Here, disposing of property is allowed “in the usual course of business.” There is no one definition for what constitutes the usual course of business, and the court will determine whether disposal of property qualifies as this on a case-by-case basis.
Creating a nonprobate transfer or modifying a non-probate 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.
A nonprobate transfer is a transfer of property that takes place upon death. It is not supervised by the probate court, i.e. is not distributed according to a will or intestacy. Non-probate transfers include payable-on-death (POD) financial accounts (such as Totten trusts), and transfer-on-death registration or real estate deeds.
Nonprobate transfers do not cover the transfer upon death of assets in a life insurance policy or other insurance policy which benefits either party or any children of the parties. Before the revocation of a nonprobate transfer can take effect, a notice of the change must be filed and served on the other party.
- Finally, if either party is planning on making any extraordinary expenditures after the ATROS are made effective, then they must notify the other party at least five business days prior to incurring these expenditures, and account for them to the court.
What doesn’t count as a violation of ATROS?
Even once ATROS take effect, parties are still able to create, modify, or revoke a will. They can also create an unfunded trust, or execute and file a disclaimer of testamentary and other interests. As mentioned above, parties may only revoke a nonprobate transfer or trust if notice of the change is filed and served on the other party before it takes effect.
Paying attorney fees or court costs
It is not an ATROS violation to use community property, quasi-community property, or separate property to pay an attorney’s fees, or court costs. This can be done through existing cash and funds, or through a Family Law Attorney’s Real Property Lien (FLARPL). A FLARPL allows a party to pay their attorney’s fees by granting the attorney a lien on the community real estate.
In the case where one party is using community funds to pay for their costs, they must account for this usage to the other party. And in the case where one party is paying for their costs under FLARPL, they must notify the other party.
Either party is allowed to terminate a joint tenancy or Right of Survivorship, as long as a notice of the change is filed and served to the other party before it takes effect.
If you are going through a divorce without an attorney’s assistance, you need to be sure you are following divorce rules and the divorce process properly. If your spouse is represented and you are in violation of any rules because you don’t know what you are doing, you might be subject to sanctions.
What are the sanctions for violations of ATROS?
Violating any of the Automatic Temporary Restraining Orders can result in a serious penalty, including a monetary payment to the other party and/or their attorney, or jail time if the violating party is held in contempt of court. If you take your child out of state, it can incur a penalty of up to a year in jail, a fine of up to $1,000, or both.
If your spouse has violated an ATRO, you are able to file a motion for contempt, as they may be in contempt of court. The burden will be upon you to prove that the violation was willful and intentional.