Automatic Temporary Restraining Orders – What Are They? | Jocelyn M. Russo

In the commencement of any divorce proceeding, the initiating party must file a Petition with the Court.  Upon the filing of a Petition, a Family Law Summons is issued.  On the back side of every Summons are Automatic Temporary Restraining Orders, commonly referred to as “ATROS.”

The Automatic Temporary Restraining Orders are four orders by which each party must abide.  If you are the Petitioner in your matter, the ATROS take effect upon filing the Petition and issuance of the Summons.  If you are the Respondent in your matter, the ATROS take effect upon personal service of the Petition and Summons or your waiver of service.

Thus, if you are the Petitioner, once the Petition is served, or if you are the Respondent, once you are served with the Petition, you are restrained from doing the following:

  1. Transferring Certain Property

Each party is restricted from transferring, concealing, or 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.

In layman’s terms, this means that you may not make changes to your estate except as you normally would to live your daily life. You may not withdraw large sums of money, make large purchases or sales, or change the character of property.

  1. Changing Insurance Coverage

Each party is restricted 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 children for whom support may be ordered.

Any insurance policy in place at the time of separation must remain in place until the divorce is finalized.

  1. Creating/Modifying Non-Probate Transfers

Each party is restricted from creating a non-probate 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 non-probate transfer usually takes the form of a change to the beneficiary of a life insurance or brokerage account.

It should be noted that many common estate planning actions, such as the creating or changing of a will, are allowed in the ATROS.

  1. Removing Children From California

Each party is restricted from removing the minor children of the parties from the state or applying for a new or replacement passport for those minor children without the prior written consent of the other party or a Court order.

If you would like to take your son or daughter on a trip out of the state during the pendency of the divorce, you must receive written consent from the other parent. Without such, you are in violation of the ATROS.   If the other parent will not provide written consent or agree to allow you to take the child, you will likely have to file a Request for Order, in which you must ask the court to allow you to take your son or daughter to the out-of-state destination.

Penalties for Breaching ATROS

The above mentioned ATROS remain in effect until there is a court order that modifies them, the Petition is dismissed, or there is a final Judgment.  In many cases, it is common for divorcing spouses not to read the ATROS, not to understand the ATROS, or simply ignore the provision.

However, the ATROS should be taken very seriously because a “willful and knowing” violation of the same could result in harsh penalties. Thus, should a spouse willfully and knowingly breach the ATROS, the court has the authority to order restitution, lost profits, sanctions, attorney’s fees, and in the rare case, order jail time.

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