Four mutual restraining orders automatically take effect in all divorce cases upon filing the petition for divorce (for the Petitioner), and upon personal service of the petition and summons (for the Respondent). These mutual restraining orders, remain binding upon both parties until entry of final judgment, dismissal of the divorce petition or further court order. They are as follows:
1) Child Move-Away and Children’s Passports: Both parties are restrained from removing their minor children from the state and from applying for new or replacement passports on the children’s behalf without the prior written consent of the other party or an order of the court. (Family Code section 2040.)
2) Property Transfers and Extraordinary Expenditures: Both parties are restrained from “transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community or separate,” without the other party’s written consent or a court order.” (Family Code section 2040.)
There is an exception for when the transfer or expenditure is done in the usual course of business or for the necessities of life.” There are no guidelines for determining whether a transfer of property or expense was made in the “usual course of business” or for “necessities of life.” One would imagine that this would be determined on a case-by-case basis, considering the unique factors of each marriage. These exceptions, however, will not be applied by the court in a way that diminishes the purposes of the ATROS, which is to keep assets in place (or frozen) until the final division at divorce.
Another exception to this restraint is that a party may use community or separate property assets or income to “pay reasonable attorney’s fees and costs in order to retain legal counsel in the proceeding.”
A court may remedy a violation of this restraining order by awarding the non-consenting party the value of that asset that he or she would have gotten at the final division of assets. For example, if Husband sold community property stocks without the other spouse’s written consent or a court order, he may be responsible at the final dissolution for any lost profits from that stock after it was sold. (Marriage of McTiernan & Dubrow, (2005) 133 Cal.App.4th 1090, 1103.)
3) Insurance Coverage: Both parties are restrained 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.” (Family Code section 2040.) This is to ensure that all parties and their children have the same access to important coverage while separated and finalizing the divorce that they enjoyed during the divorce.
4) Creation or Modification of Transfer Documents: Both parties are restrained from creating an instrument, other than a will, that transfers property on death. This includes a revocable trust, financial institution pay on death account, Totten trust, etc. However, the restraining order does not prohibit the transfer of property upon death in an insurance policy or other coverage held for the benefit of the parties and their children for whom support may be ordered.
Enforcement of the ATROS:
The court may hold a party in contempt to compel compliance with these restraining orders. Civil contempt means a party is ordered imprisoned only until he or she performs an act ordered by the court, or the party is ordered to pay a “compensatory” fine to the other party. It is merely remedial or conditional in nature. Also, a party concerned with an imminent violation of the ATROS may appear ex parte to request an expansion of the restraining orders or a modification or revocation of the orders, under Family code section 235.