A divorce proceeding takes both an emotional and financial toll on the spouses and might bring out the worst, even in the best people. When it comes to your safety and that of your children, you cannot take chances, so automatic temporary restraining orders are not uncommon during divorce proceedings. If you think your ex-partner might act unjustly or aggressively towards you during your divorce, consider consulting with skilled legal counsel about protective order options. We can help you safeguard yourself, your property, and your family.
Circumstances that Might Prompt Issuing of a Restraining Order
An automatic temporary restraining order is a mutual order that becomes effective immediately after service of a summon is issued in a divorce, paternity action, or legal separation. ATROS are found on the Summons of a Petition for Dissolution. The order remains effective until the final judgment is reached, a court order for termination exists, or the divorce proceeding is dismissed.
Contrary to popular belief, a restraining order is not only issued in domestic violence cases. There are several reasons why the court may give an automatic temporary restraining order so your divorce process may run smoothly without hurting either partner, property, and children.
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Removal of your children — If you believe your ex-spouse will take your children from your home or California, an automatic temporary restraining order could stop them from taking this action. This doesn't apply in cases where your children are in another state when you file the petition. The automatic temporary restraining order does not require that your children are returned to Golden State if they are not residing here during the petition.
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Clearing your bank accounts — During divorce proceedings, some partners threaten to remove assets from joint bank accounts, leading to the other partner's financial dependency.
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Sales of significant property —If you think your spouse might sell your shared assets like your motor vehicle or home, an automatic temporary restraining order will stop this move until your divorce case is closed.
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Borrowing on your joint asset — An ATRO can prevent your partner from using your joint assets like real estate as collateral for their loan.
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Withdrawing from your retirement accounts — Some partners preemptively withdraw money from a retirement account, and it can be difficult to replace. Fortunately, an ATRO can stop this action.
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Insurance changes — The restraining order could stop a partner from canceling an auto-insurance or homeowners' policy or even prevent them from altering their life insurance beneficiaries until the divorce case is closed.
The ATRO also prevents all spouses from transferring, hypothecating, concealing, encumbering, or disposing of any property, personal or real, whether separate, community, or quasi-community, without consent of their partner or court order, except for necessities of life, or in the usual course of business.
What to Happens After Filing the Automatic Temporary Restraining Order
Once you file divorce and notify your partner, the order will automatically become effective. It prevents changing the status of the marital property, insurance policies, or business interests.
You'll be bound once you file for your divorce, while your spouse will be bound after being served appropriately. It's a measure guaranteeing fairness to every party and that the spouses are protected.
You can withdraw no vast sum of money from your marital bank account. You or your spouse can remove neither any spouse nor the children from dental, health, life insurance, or other coverage policies. Moreover, you can't change the beneficiaries.
Additionally, no spouse is allowed to charge a vast amount of funds to a credit card or incur any reasonable amount of money.
If you have a business together with your spouse, neither of you can transfer their interest to a loved one once the divorce case is filed. You can also not engage in any conduct you would not have done if the divorce motion was not in progress.
What Your Spouse Can Do While Your Divorce Case is Pending?
An automatic restraining order is designed to prevent every partner from taking actions that might negatively affect the other spouse's ability to enforce their divorce rights. Nevertheless, an ATRO isn't tailored to stop any spouse from living their life. While the orders prohibit specific significant unilateral family and financial decisions, they still permit a reasonable amount of flexibility and discretion. For instance, the orders don't prohibit:
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Taking your children on vacation in Golden State
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Selling or purchasing items in the ordinary course or to buy necessities
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Revoking, modifying, or creating a will
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Continue drawing from their pension if they were already doing so
How Automatic Temporary Restraining Orders are Enforced
Automatic temporary restraining orders are designed to ensure the well-being and protection of the parties involved. The restraining orders outline rules during your divorce proceedings. They prevent preemptive or malicious conduct from either spouse.
A family court enforces the orders. Some courts provide solutions that are compliant with cases involving a breach of fiduciary duty. Remedies and solutions might be to order lost profits, restitution, or the title to specify assets.
The court can impose sanctions and lawyer fees against the spouse that engaged in the violation. Additionally, every party could request the judge to expand, modify, or revoke their ATRO. If modification is required, your lawyer will talk to you and consider if you should request the judge to make the appropriate changes.
An ATRO is Not Always Automatic
Do not assume that the court will automatically inform all your policies and accounts once the automatic temporary restraining order becomes effective. Since California prohibits alteration of beneficiaries, you should advise your stock brokerage, insurance provider, and bank about your divorce case. The court staff doesn't do this.
Are There Any Elements of Your Financial Selection Not Contained within Your ATRO?
Yes. Generally, the following aren't considered a violation of the automatic restraining order:
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Payment of the attorney fee — A spouse is allowed to use an asset to foot reasonable attorney's charges to hire an attorney and encumber their community interest in community real property to obtain legal counsel through a Family Law Attorney Real Property Lien. Nevertheless, suppose you are using community money. In that case, you should account for using these funds to your ex-spouse. And if using a Family Law Attorney Real Property Lien, issue a notice to your partner.
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Eliminating the right of survivorship to property at your pendency of the dissolution action or severing a joint tenancy isn't an ATRO violation as long as the notice of your changes is brought and served to the other spouse before the changes became effective.
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Sometimes disposing of an asset is permitted for use in the usual course of business. Nonetheless, the judge will consider the business's nature and check whether it's a bona fide. If your spouse is an investor whose trade is turning profits with their funds, they will qualify per the exception, while another person might not.
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Wills—It is not illegal for any spouse to create, modify, or revoke a will provided notice of a change is brought and served to the other spouse before it becomes effective. You can revoke a non-probate transfer, including a revocable trust. You can create an unfunded revocable or irrevocable trust. Unfunded refers to the fact that you are yet to transfer the property into the trust.
Penalties and Consequences for Breaking the ATRO
Per Family Code 233(c), the consequences of knowingly and willfully violating the ATRO contained within the summons, specifically removing children from California without a court order or a written document allowing their party is punishable under California Penal Code Section 278.5. The statute is the kidnapping statute and carries severe penalties against the defendant.
If your partner violated the other automatic temporary restraining orders highlighted on the summons, the prosecutor might initiate a contempt criminal proceeding against them. The offending spouse might be sentenced for a California misdemeanor that attracts:
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At least one year in county jail
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A maximum of one thousand dollars in fines
Reasons to Engage a Restraining Order Attorney
If you require a restraining order before your divorce, here are reasons you should retain a skilled family law attorney through the legal process.
When you obtain an ATRO, your order should include all restrictions essential to keep you and those that matter to you safe. A lawyer can help you get an order which addresses the unique needs.
To acquire your restraining order, you should fill out the paperwork correctly and completely. Unfortunately, the court staff cannot help you. Speaking with an attorney is an effective method to ensure you understand the necessary forms and complete them thoroughly and correctly and file them timely.
Should your spouse violate the automatic temporary restraining order, your attorney will file a motion in court, requesting the court to determine if they violated the order and issue a penalty for the violations.
When you request an ATRO, your spouse is likely to attend a court hearing to defend themselves. It's common for parties undergoing divorce to feel anxious about facing a person in court that they feel uncomfortable with. Attending the hearing with a lawyer by your side could be less intimidating than going alone.
During this challenging time in your life, it is comforting to know that a person cares. Your lawyer has your best interests, can offer caring support, and answer all your questions. They will also advise you on what you can and cannot do and assist you with numerous issues that come with divorce, like property division, child support, alimony, child visitation, and child custody.
How to File a Temporary Restraining Order
To successfully file a restraining order before your divorce, you need to follow the steps below:
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Fill out the Court Forms and Prepare to Bring
First, you need to read how to ask for a temporary restraining order. You can find the form in Vietnamese, Korean, Chinese, and Spanish. Then file all the required paperwork correctly.
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Bring the Forms with the Court
Once you've filled out your forms, take them to the court clerk. The judge will go through your paperwork before deciding whether to make the orders you're requesting or not. When you return to the court to collect the paperwork, remember to check whether the judge has signed your temporary restraining order, made changes to your orders, and the court hearing date. After the judge signs the order, the court clerk will file it.
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Serve Your Spouse Your Paperwork Before the Deadline
Serving means your partner should receive copies of all papers you brought with the court. A process server or server (a third party) should deliver your paperwork on your behalf. Your server should be at least eighteen years of age and not protected by your order.
Until your spouse is properly served, the ATRO is not effective.
Ensure your server fills out a Proof of Personal Service and gives it to you so you could bring it to court. The form notifies the court that your spouse received a copy of the order and is aware of it.
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Prepare for and Attend the Court Hearing
Don't miss the hearing. Otherwise, the restraining order will end, and you'll have to start all over again.
Arrive at the court courtroom at least thirty days early. Carry a list of your orders and rehearse saying them. If you are nervous at your hearing, read from the list.
During the hearing:
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When the judge asks you questions, talk slowly, tell the truth, and read from the list.
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Your spouse or their lawyer might ask you a few questions
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Make sure your answers are complete
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If you don't understand, say it
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If your spouse lies, wait until they finish talking and then tell the court the truth.
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Talk only to the judge unless it's your turn to ask questions
At the end of your court hearing, the court will say the order and its conditions. They might:
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Grant your orders
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Grant some of your orders
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Deny the requested orders
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Postpone the case and issue another court date
If the judge grants the ATRO at the hearing, you should draft an order for the judge to sign. Sometimes, the court staff or clerk will write the order. In this case, please review it carefully to ensure nothing is left out. Should there exist an error, notify the clerk immediately.
Modifying and Ending Your Restraining Order
If a person wants to modify or terminate an order the court made in their restraining order after the court hearing, they should bring a request to court before their restraining order expires. Either spouse can modify or terminate the order.
Here is a step-by-step guide on how to modify or terminate your restraining order following the court hearing:
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Read Form DV-400 (How do I ask to change or end a domestic violence restraining order after hearing)
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Fill out the court forms, including:
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Form FL-300 (Request for order)
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Form FL-105 to change your child visitation and custody orders
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To change your child support order, fill out Form FL-150
Request the family law facilitators to analyze your paperwork and ensure it is filled out correctly.
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Make more than three copies of your paperwork — The original copy should remain with the court, give your spouse one copy, and keep two copies.
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Take all the forms to a clerk — The court clerk will keep your original and give you the copies with court time and date stamped on Form FL-300's first page.
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Bring the proof of service.
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Attend the court hearing — Remember to carry copies of your paperwork, including the proof of service. During your hearing, the court will determine whether to modify or terminate your restraining order or not.
If the court modifies your restraining order, fill out Form DV-130. Tick the amended box and submit three copies of the amended restraining order. Should the court clerk prepare the order, review it to ensure it contains all your order's elements. Then the judge will sign your new order.
If the court terminates your ATRO, fill out Form DV-400, make three copies of your form and give them to the court clerk. Should the court clerk prepare the order, review it to ensure it contains all your order elements. Then the judge will sign your new order.
What Happens After Your Divorce?
Once the divorce proceedings are final, the court will lift the ATRO. Nevertheless, if you prove domestic violence, financial abuse, verbal abuse, or emotional abuse during the divorce, the court might issue a final restraining order against your spouse.
If you think your partner might take advantage of your money or assets, file your divorce case immediately. The ATRO isn't effective until the date of filing. From time to time, exemptions might apply and extend before your filing, so consulting with an experienced family law attorney is advisable.
Find Legal Representation Near Me
If you are contemplating filing divorce, you should consult with a seasoned family law attorney immediately. An ATRO is an essential element of your divorce proceeding. However, it is hard to understand, and it might be debated as to its scope. The legal team at San Diego Family Law Attorney can explain the role of the restraining order and whether it applies to your case or not. If it does, your lawyer can elaborate on how it might impact you, your children, property, and spouse. A San Diego divorce lawyer could also advise you whether your automatic order should be modified or expanded. We take pride in representing, advising, and helping our clients get their best possible case outcome for many years, and we can assist you too. Contact us today at 619-610-7425 to book your free initial consultation.
