Family Law

San Jose Divorce Attorney Discusses Automatic Temporary Restraining Orders

By Scott Sagaria

San Jose Divorce Attorney Discusses Automatic Temporary Restraining Orders

Upon the filing of the initial petition, the court automatically makes four orders which bind the Petitioner. These same four orders are binding on the Respondent when served with the summons and petition. These orders are known as the Automatic Temporary Restraining Orders, or ATROS. The orders are listed on page 2 of the summons, if you want to review them yourself. ATROs remain in effect until final judgment in the action (or dismissal of Petition) unless earlier modified or terminated by court order, pursuant to Fam. Code §233.

The orders enjoin or prevent a party to a marital action from doing any of the following four things:
(1) removing a minor child from the state of California without prior written consent of the other party or a court order;
(2) transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real, or personal whether community, quasi-community, or separate without the other party?s written consent or a court order except in the usual course of business or for the necessities of life;
(3) 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) creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer, without the other party?s written consent or a court order.

You may be wondering, after reading the above paragraph, what this means for you. For example, (2) above prevents you or your spouse from transferring, encumbering, hypothecating, concealing or in any way disposing of any property in the marriage regardless of characterization, except ?in the usual course of business or for the necessities of life.? In plain language this means you cannot move large sums of property around to hide it. You cannot give a large sum to someone else. What is large? It depends on the circumstances. In a very high asset marriage, the amount that will be a violation will be different from a low asset marriage.

Another example is (4): what does ?creating a non-probate transfer? mean? A probate transfer is a transfer on death, such as a will, or a revocable trust. Those types of estate planning transfers are acceptable under the ATROs. Any other transfer, such as a deed, or a trust, not intended for estate planning purposes, would be a violation.

Bottom line: if you have questions about whether an action you wish to take could be a violation of the ATRO, you should contact us before taking any action. Our team of attorneys here at Sagaria Law handles all aspects of divorces, from filing the petition, litigating the issues and drafting the judgment paperwork. Some of the issues that are common to divorces are spousal support, property division, child support, child custody and visitation. We have four Bay Area locations, including San Jose, Fremont, Monterey and Redwood City. We handle cases throughout the Bay Area, and offer a free thirty minute in person or telephonic consultation. Call our office today.

Full post as published by California Family Law Blog on April 28, 2008 (boomark / email).