Understanding the Facts About Temporary Restraining Orders

Divorce

When a summons is issued in a divorce case in California, which occurs at the time the initial Petition of Dissolution is filed, there are provisions listed within the summons that automatically restrain either party from doing certain things with regard to their children and their property.

These provisions are called automatic temporary restraining orders, often called ATROs by the courts and family law attorneys. These provisions are provided for in Family Code section 2040 and temporarily restrain the parties, in short:

  • From removing their children from the state and from applying for or renewing their passports;
  • From borrowing against, selling, transferring or otherwise disposing of or changing the disposition of any real property;
  • From changing the beneficiaries of any life insurance or other insurance policies;
  • From changing the disposition of property by nonprobate transfer, which Family Code section 2040(d)(1) describes as:

(d) For the purposes of this section:

(1) “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, revocable transfer on death deed, or other instrument of a type described in Section 5000 of the Probate Code.

The Purpose of Temporary Restraining Orders

The provisions of Section 2040 listed on the summons are intended to make sure both parties do not move the children away from California without agreement or permission of the court, as well as protecting the assets they have acquired during the marriage.

Significantly, Section 2040 specifies that the following warning must be included on the summons and applies to both parties:

“WARNING: California law provides that, for purposes of division of property upon dissolution of marriage or legal separation, property acquired by the parties during marriage in joint form is presumed to be community property. If either party to this action should die before the jointly held community property is divided, the language of how title is held in the deed (i.e., joint tenancy, tenants in common, or community property) will be controlling and not the community property presumption. You should consult your attorney if you want the community property presumption to be written into the recorded title to the property.”

What’s Allowed Under Temporary Restraining Orders

You should be aware, however, that there some exceptions to the removal or use of community property assets, such as the parties are allowed to use such property to pay for “reasonable attorneys fees.”

What is considered reasonable can be questionable, but the courts do not always step in to find attorneys fees unreasonable in every case. Each case is reviewed on its unique facts, so in a divorce case it is a good idea to carefully keep track of all community assets to protect yourself.

Parties are also permitted to use community property, and separate property that may have certain community property features, “…in the usual course of business and for the necessities of life.” (Family Code section 2040(a)(2))

These expenditures must be reported to the other party within five days, and all such expenditures must be accounted for to the other party and the court.  

If either party violates the ATROs, they may be held in contempt of court or found to have breached their fiduciary duties, which could result in jail time, fines, sanctions, and penalties that could be as drastic as returning the misused asset(s) to the community or having one party alone being awarded the entire asset.

Contact an San Diego Divorce Lawyer About Temporary Restraining Orders

When you’re going through a divorce, an experienced divorce attorney can help you understand the process, including temporary restraining orders.

If you are considering divorce or have already made the difficult decision to pursue divorce and have questions, contact JWB Family Law to schedule a free consultation.

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