Legal Blog

Automatic Temporary Restraining Orders

If you have been served with (or have served) divorce papers, it is important to be aware of your legal obligations. For one, Family Code section 2040 provides for temporary restraining orders that take effect once a Summons and Petition for dissolution of marriage are filed and served. Because these restraining orders kick in automatically, they are referred to as the ATROs (Automatic Temporary Restraining Orders).

The Summons contains the pertinent language of Family Code section 2040 verbatim for the parties’ reference under the heading “Standard Family Law Restraining Orders.” This reflects the requirement of subsection (a) of Family Code 2040 that the following temporary restraining orders appear on a family law Summons:

(1) Restraining both parties from removing the minor child or children of the parties, if any, from the state, or from applying for a new or replacement passport for the minor child or children, without the prior written consent of the other party or an order of the court.

(2) Restraining both parties 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, and requiring each party to notify the other party of any proposed extraordinary expenditures at least five business days before incurring those expenditures and to account to the court for all extraordinary expenditures made after service of the summons on that party.

Notwithstanding the foregoing, nothing in the restraining order shall preclude a party from using community property, quasi-community property, or the party’s own separate property to pay reasonable attorney’s fees and costs in order to retain legal counsel in the proceeding.  A party who uses community property or quasi-community property to pay his or her attorney’s retainer for fees and costs under this provision shall account to the community for the use of the property.  A party who uses other property that is subsequently determined to be the separate property of the other party to pay his or her attorney’s retainer for fees and costs under this provision shall account to the other party for the use of the property.

(3) Restraining both parties 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 child or children for whom support may be ordered.

(4) Restraining both parties from 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.

Thus, as a general rule, if you have been served with divorce papers (or have served your spouse with divorce papers), you should not take any action that is plainly out of the ordinary—like depleting the contents of a bank account—with the clear exception that parties may withdraw funds to pay their reasonable attorney fees and costs.

Be aware, however, that subsection (b) of Family Code 2040 notes that parties are not restrained from (1) creating a will; (2) revoking a nonprobate transfer; (3) eliminating a right of survivorship to property; (4) creating an unfunded revocable or irrevocable trust; or (5) executing and filing a disclaimer pursuant to Probate Code Division 2, Part 8. Consult your attorney for full details.