ATROs are such a regular component of divorce in California that attorneys often throw the term around, forgetting that many people don’t understand what ATROs are or how they operate. An ATRO is an essential protection during the divorce process, but if you do not abide by the terms and requirements, you can get into trouble.
ATRO stands for Automatic Temporary Restraining Order, and the California Family Code requires courts to include one in every divorce action, as well as in cases for legal separation and parentage. It is vitally important to understand how they work and what you need to do to comply with the terms. Your divorce attorney can review the specific requirements in your case, but here are some overall guidelines.
Freezing the Status Quo
As soon as one spouse signs the petition asking the court to end the marriage or establish legal separation, the law requires a temporary restraining order to be contained in the summons. Because this order is included in every case, it is referred to as “automatic” by divorce professionals. Unlike some court orders, this automatic temporary restraining order or ATRO imposes restrictions on both parties in the case.
The order essentially freezes the status quo during the course of the divorce proceedings in an effort to limit the ways one spouse can act to injure the interests of the other spouse. Restrictions involve three main areas: community property, children, and insurance coverage. There are exceptions to the provisions, and spouses sometimes abuse these exceptions, so it is wise to work closely with your attorney to develop other protective means if necessary.
Preserving Financial Assets
Once the ATRO is in place, neither spouse is supposed to sell, hide, or dispose of any property unless they get written consent from the other spouse or an order from the court. This is designed to keep spouses from damaging each other’s interests in property. However, it not possible for spouses to avoid spending any money during the divorce proceedings, so the law makes some exceptions:
- You are allowed to spend resources for “the necessities of life,”
- You are allowed to use resources in “the usual course of business”
- You are allowed to pay “reasonable attorney’s fees”
In the case of the first two exceptions, a spouse is supposed to provide notice to the other party at least five business days before making “extraordinary expenditures” and to account to the court for those expenditures.
Keeping Children in the State
Another provision in the ATRO prohibits either parent from taking a minor child out of the state unless they have prior written consent from the other parent or they have obtained a court order allowing them to take the child out of state. In addition, a parent cannot apply for a new or replacement passport for a child without the other parent’s consent or a court order.
If a child is already out of the state when the ATRO is issued, the order does not require the child to be returned. Additionally, the ATRO does not restrict movement within the state.
Protecting Insurance Coverage
To preserve the status quo with regard to insurance coverage, the ATRO forbids spouses from making changes to any insurance policies that affect either the other party or the children of the couple. This includes:
- Life insurance
- Auto insurance
- Health insurance
- Disability coverage
Neither spouse can change beneficiaries, cancel a policy, remove a party of interest from a policy, or borrow against a policy.
Actions You Are Allowed to Undertake While an ATRO is in Effect
While it is important to be careful about doing something with your property or interests that could violate the ATRO, the law does specifically allow you to take certain actions. Many of these involve estate planning.
For instance, you are allowed to create, modify, or revoke your will. You are allowed to specify who you want to manage your estate and serve as guardian for your children, if necessary, and who you want to receive your property when you pass away.
You can also create any type of trust, such as a revocable trust used to bypass the probate process or an irrevocable trust to shield assets. However, you will need to wait until after the divorce is finalized to transfer property into the trust, because property is subject to classification and division during the divorce process. Finally, you can take certain actions with respect to property such as eliminating a right of survivorship or revoking a transfer, as long as you file and serve notice of the change before the change takes effect.
What Happens if You Violate the ATRO?
Many people do not pay attention to the specific terms in the ATRO, and they can end up violating the order unintentionally. Other times, a spouse may violate the order knowingly hoping the court will not pay attention. Because courts cannot keep on top of every detail of someone’s life during the divorce process, it is possible that a minor violation might not be noticed, particularly since the exceptions in the law can allow someone to argue that they were acting within the scope of the order. If a violation causes a loss to the other spouse, that spouse could seek compensation.
If someone violates the ATRO in a serious way, such as emptying a bank account, then that person can face fines and sanctions for being in contempt of court and breach of fiduciary duty. Perhaps more importantly, they lose credibility with the court, and this can work against them when it comes to matters of property division and custody.
Remain Aware of Your Obligations and the Actions of Your Spouse
During the midst of your divorce, it is wise to comply with the terms of the ATRO so that you cannot be accused of wrongdoing. It is also wise to keep a close eye on accounts and policies to ensure that your rights are respected. If your spouse violates the order, bring the issue to your attorney’s attention so you can discuss the most advantageous response.
At Holstrom, Block & Parke, APLC, our attorneys have over 300 years of collective experience protecting the rights of clients in divorce, so we can help you comply with the ATRO and stay on top of any wrongdoing by your soon-to-be former spouse. For a confidential consultation to learn more about the ways we can protect you in divorce, call us at 855-426-9111 or contact us online.