Automatic Temporary Restraining Orders in Orange County Divorce Cases
When a divorce, legal separation, nullity, paternity or other family law action is filed, a summons is issued (form FL – 110 ). On the back of the summons, several automatic restraining orders are listed (called “ATROs”. They apply to both the petitioner and the respondent once the respondent is served. There are four listed items on the back of the summons, including:
- Both parties are restrained from removing a minor child of the parties out of the state or applying for a new or replacement passport for minor children without the prior written consent of the other party or a court order;
- 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 minor children;
- The parties are prohibited from transferring, encumbering, hypothecate in, 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
- The parties may not create a non-probate transfer or modify a non-probate transfer in a manner that affects the disposition of property subject to the transfer. Before revocation of a non-probate transfer can take affect or a right of survivorship to property can be eliminated, notice of the change must be filed and served on the other party.
Exceptions
Parties may make extraordinary expenditures using community or separate property, but they must first provide at least five business day’s written notice to the other party. They must also account to the court for all such expenditures.
Additionally, either party may use community property, quasi-community property, or separate property to pay an attorney or pay court costs. No prior written notification or court order is necessary for this.
Enforceability across California
Family Code section 232 states that the summons is enforceable in any place in the state of California by any law enforcement agency that has received a copy of the summons, by mail or otherwise. This means that a party can show a law enforcement officer the automatic restraining order and information about a filed case and ask the law enforcement officer to enforce the order. As an example, if a party was seeking to remove or trying to remove a child from the state of California, the other party would be able to rely on law enforcement to enforce the automatic temporary restraining order and restrain the move.
Penalties for Violating the Automatic Restraining Orders
Family Code section 233(c) states that the penalty for willfully and knowingly violating the automatic restraining orders contained within the summons, specifically with regards to removing a child from the state without a written document permitting their removal by the other party or a court order, is punishable in a criminal proceeding under Penal Code 278.5. This statute is the kidnapping statute for California, and carries hefty penalties against a willful violator. If a party disobeys one of the other three automatic restraining orders listed on the summons, a contempt proceeding may be initiated against that party. They may be convicted of a misdemeanor punishable by a fine of not more than $1000, or by imprisonment in a county jail for not more than one year, or both.
Revocation or Modification of Automatic Temporary Restraining Orders
Family Code section 235 states that either party may file a motion and asked the court to revoke, or vacate, or modify any of the four automatic temporary restraining orders listed on the back of the summons. There may be good cause for the Family Court judge in Orange County to revoke or modify a temporary restraining order; however, usually the court may enter any order that would be appropriate and having such an order that contradicts any one of the automatic temporary restraining orders is permissible. The court order will always take precedence.
If you are served with a divorce, legal separation, annulment or other family law case, you should contact an attorney right away. Our lawyers are very skilled in dealing with all family law cases and are standing by to help you now. We offer a free consultation and free parking. CONTACT US TODAY.