ATROs (Automatic Temporary Restraining Order)
As soon as one party files a Petition for Dissolution of Marriage, for Nullity of Marriage, for Legal Separation, or for a Parentage action, they are restricted from taking certain actions by temporary restraining orders found in the Summons issued in those matters. Commonly referred to as “Automatic Temporary Restraining Orders (ATROs),” these restrictions are placed on the opposing party as soon as they are served with the Summons and initial court paperwork.
You need to be aware of these restrictions prior to the beginning of the case if you are the person filing a Petition, or as soon as possible if you are served with one. ATROs remain in effect against both parties until, in most cases, Judgment is entered or the case is dismissed.
In summary, the ATROs are as follows:
If you and your spouse have a child together, and that child is a minor, once the ATROs are in effect, neither of you can remove the child from the state of California, or obtain a passport for the child, unless your spouse is in agreement with doing so, or by order of the court.
You are not allowed to change beneficiaries or insurance coverage when ATROs go into effect. If your spouse is the beneficiary of your life insurance policy, you cannot take him or her off it. You also cannot take your spouse OR your children off your health insurance plan, car insurance, or disability coverage.
Additionally, you are restrained from “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.” This is the provision of the ATROs that is violated most often because people do not understand the far-reaching restrictions. Essentially, any action that affects property that your spouse has an interest in, or may have an interest in, needs to be carefully considered. Of course, you can use money in bank accounts to buy food and pay your bills, but you cannot take money and hide it in new bank accounts, or take out loans that use your property as collateral. Consider consulting with an attorney to be sure you do not violate this provision.
Lastly, you cannot create or modify a non-probate transfer without written consent of the other party or a court order.
What CAN you do once the ATROs are in place?
· You can create, modify or revoke a will.
· You can revoke a nonprobate transfer and terminate right of survivorship in property if you provide notice of the change to the court and serve it on the other party before the change occurs.
· You can create an unfunded revocable or irrevocable trust.
· You can use community and separate property to pay the retainer for an attorney or attorney’s fees and costs.
What happens if I violate the ATROs?
One thing you never want to do during a family law proceeding is violate an order as this may result in the court holding you in contempt with an accompanying citation for a breach of your fiduciary duty (your duty to act in the best interest of the other party).
It is important to know your rights, responsibilities, and options. Our family law team at Naimish & Lewis can advise you on this and other family law matters. To schedule an initial consultation with an attorney at our firm, please contact us.