What are Standard Family Law Restraining Orders and what do they have to do with my divorce?
Standard Family Law Restraining Orders, (Family Code Section 2040 formerly known as “Automatic Temporary Restraining Orders or “ATROS”) are orders that apply to both parties to the litigation and go into effect immediately upon service of a Summons for dissolution of marriage (divorce), legal separation, nullity or a paternity action.
The Standard Family Law Restraining Orders are very important and are contained in the second page of the Summons (FL-110) and state the following:
Starting immediately, you and your spouse or domestic partner are restrained 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 an order of the court;
- 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 minor children;
- transferring, encumbering, hypothecating (pledging money), 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; and
- 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. Before revocation of a nonprobate transfer can take effect or a right of survivorship to property can be eliminated, notice of the change must be filed and served on the other party.
You must notify each other of any proposed extraordinary expenditures at least five business days prior to incurring these extraordinary expenditures and account to the court for all extraordinary expenditures made after these restraining orders are effective. However, you may use community property, quasi-community property, or your own separate property to pay an attorney to help you or to pay court costs.
Purpose of Standard Family Law Restraining Orders
Standard Family Law Restraining Orders are intended to protect both parties during the divorce proceeding by restricting certain actions that could lead to issues with the children of the marriage, insurance, financial issues and probate issues involving wills and trusts.
Standard Family Law Restraining Orders help to prevent unethical situations where one party may take advantage of the other by them cleaning out the joint bank account, canceling insurance policies, changing wills or trusts, or moving out of state with the children without the consent of the other spouse. The parties are still free to make changes to a degree under the restraining orders provided that there is a written agreement between them or a court order.
From a financial and property standpoint, Standard Family Law Restraining Orders are designed to essentially place the body of the community estate, including separate property, in stasis. It can be a crucial action, particularly if one party holds more control over assets than the other. In addition to offering a level of protection to divorcing couples. It also provides more clarity as to the value of assets, since little to no changes are allowed to occur during this period.
Because some cases do go to trial, and by law, the court must divide the community equally, the court prefers to keep the community estate intact as much as possible, so the court has the complete picture of its task, rather than having the parties piecemeal things through the proceeding which would cause the court to have to reconstruct it and trace the division.
Standard Family Law Restraining Orders are an important safeguard for the parties during a difficult time in their relationship. They provide a means of legal recourse to a party should the other spouse violate the orders. The consequence for violating any of these orders can be serious. Because they are court orders, violation of any of the Standard Family Law Restraining Order could give rise to a charge of contempt. While normally a violation does not go to that extreme, Standard Family Law Restraining Order are not to be taken lightly and being on page two of the Summons in the upper left-hand corner can easily be missed unless the party is well informed.
Your Legal Advocate
At Beck Law P.C., we can help you to understand the ins and outs of this and other divorce issues. Our job is to advocate for you. If you live in Sonoma County, Mendocino County or Lake County California, contact us in Santa Rosa for a consultation today.