OK. You have either decided to file for divorce in Sacramento, Placer, or Yolo County. Or you have been served with divorce papers for a divorce in Sacramento, Placer or Yolo County. You either prepared the court documents yourself, or you have hired a qualified Sacramento divorce lawyer to help you. A natural question is, once the divorce case starts, what orders are in place that govern my any my spouse’s behavior?
In California, four statutory “standard mutual restraining orders” (“ATROs”) take effect automatically once a divorce, legal separation or annulment action is filed. These ATROs apply to both parties — as to petitioner, upon filing the petition and issuance of summons; and, as to respondent, upon personal service of the petition and summons or respondent’s “waiver and acceptance of service.”
These ATROs are set forth in the family law summons (Judicial Council Form FL–110). Thus, they issue automatically, and no separate ex parte application is required. The ATROs in a divorce, legal separation, or annulment action are as follows:
- Child moveaways: This automatic temporary restraining order prevents both parties from removing their minor children from the state “without the prior written consent of the other party or an order of the court.”
- Property transfers and extraordinary expenditures: This automatic temporary restraining order prevents 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 other party’s written consent or a court order, … “except in the usual course of business or for the necessities of life.” This restraining order also requires each party to notify the other 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 summons.
- Insurance coverage: This automatic temporary restraining order prevents 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.”
- Creation/modification of nonprobate transfers: This automatic temporary restraining order prevents 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 other party’s written consent or a court order. A “nonprobate transfer” within the meaning of the ATROs is an instrument, other than a will, that transfers property on death. It includes a revocable trust, financial institution pay on death account, Totten trust, transfer on death registration of personal property, or other instrument of a type described in the Probate Code. Instruments described in the Probate Code include a marital property agreement. Thus, an agreement between spouses concerning the division of community property on either spouse’s death is a nonprobate transfer subject to the ATROs.
Of course there are exceptions to the prohibited transfers contained in the automatic temporary restraining order. Some of the more common exceptions include:
- “Usual course of business”/“necessities of life” exception: The Family Code offers no guidelines for determining whether a unilateral property disposition was made in the “usual course of business” or for “necessities of life” so as to be excepted from the ATRO. One case indicates, however, that these exceptions are narrowly construed so as “not to nullify the plain purpose” of the automatic temporary restraining orders. A spouse who unilaterally sells community property to pay community expenses cannot automatically escape an ATROs violation under the “necessities of life” umbrella. Nor is a party’s unilateral community property sale “in the usual course of business” simply because made on the advice of the party’s business managers or because he or she “always managed” the community property.
- Payment of attorney fees and costs exception: The ATRO does not preclude either party from using community or 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 or quasi-community property to pay his or her attorney’s fees and costs retainer must account to the community for use of the property. Likewise, a party who pays his or her fees and costs with other property that is subsequently determined to be the other party’s separate property must account to the other party for use of that property. It is important to keep a paper trail documenting the source of attorney fees and costs payments during a divorce. A party who cannot provide the requisite accounting (showing the source of funds as community property or separate property that was used to pay the party’s attorney fees and costs) may have to suffer the consequences of violating the ATRO.
For everything you need to know about Sacramento Family Law, please contact us at 916-449-9977. Call today and we will connect you with an experienced Sacramento Divorce and Family Law Attorney. After you have spoken with one of our Sacramento Divorce and Family Law attorneys, we can schedule you a free face to face appointment to discuss your circumstances. If you have questions or are considering any aspect of filing for divorce, visitation, or custody, we can help! Call us now at 916-449-9977. We look forward to hearing from you and assisting you with any and all family law needs.