Divorce is a devastating and stressful moment where an emotionally overwhelmed spouse can attempt to win the process or seek vengeance by removing properties from joint accounts. California is a community property state with an automatic temporary restraining order that stops numerous legal and financial actions from occurring. When you have filed for dissolution of marriage or have been served a summons of dissolution, the ATRO (Automatic Temporary Restraining Orders) is designed to protect all spouses and becomes effective once your divorce process begins. If you need clarification or wonder how the restraining order will impact you, please consult an experienced Sacramento attorney.

Reasons for Obtaining a Restraining Court Order Before Divorce

You should consider obtaining a protective order before the dissolution of your marriage if your spouse consistently behaves in a way that causes your divorce proceedings to be challenging. Most individuals assume that protective orders are an option only in assault or domestic violence (DV) situations, but that is a myth. Some situations require a restraining court order to ensure the divorce process runs smoothly. It prevents injury to partners, their children, or their assets.

Some circumstances that can prompt the need for a temporary restraining order (TRO) include the following:

  • Selling significant assets — Divorce proceedings can turn unpleasant, and you might fear that your partner will dispose of substantial properties before the dissolution of your marriage. Some critical joint assets include your marital home and cars. Filing for the TRO will hinder your partner from selling anything until the dissolution of your marriage case is resolved.
  • Suppose your partner is threatening to take your children away — You should immediately file for this court order if you fear that your partner will attempt to remove your children from home or California.
  • Borrowing against your matrimonial assets — The court order will prevent the other partner from applying for a loan with the joint assets as security. It is usual for some partners to obtain loans and secure them with joint assets like automobile logbooks or homes.
  • Making changes to your insurance — During the divorce proceedings, some partners may try to initiate various insurance changes, like changing their life insurance beneficiaries. The court order hinders your partner from canceling homeownership or car coverage until the dissolution of your marriage. The TRO is appropriate if you feel your partner will likely kickstart the above mentioned actions. It safeguards both parties as the divorce proceeds in court, and no party can undertake significant changes without the other spouse's approval.
  • Withdrawing retirement money — Your partner might secretly withdraw cash from your retirement accounts, and the cash would be challenging to replace. If you believe your partner plans to engage in this conduct, filing a TRO against them could be a legal deterrent.

Automatic Temporary Restraining Orders (ATROs)

ATROs are mutual court orders that become effective once a summons in legal separation, marriage dissolution, paternity action, or nullity is served. ATROs are outlined on the back of your summons paperwork. They remain effective until the divorce case is resolved or the court orders its termination.

There are some crucial legal considerations you should understand during California divorce proceedings. The practical and considerations intertwine in various ways. For instance, failure to grasp the specific legal obligations might negatively affect your divorce proceedings. Your legal obligations begin with an automatic restraining order that applies to both parties until the dissolution of the marriage.

During your divorce proceedings, California laws prohibit the following:

  • Cashing, transferring, borrowing against, canceling, or changing insurance policy beneficiaries (automobile, health, life, and disability policies) held in trust for the benefit of your partner or minor children.
  1. You cannot cash in your life insurance and deposit the money into a separate account.
  2. You cannot remove your partner from your car insurance, even when you are living separately.
  3. You cannot remove your children or partner from your vision, dental, or health insurance policy.
  4. You cannot change your life insurance’s beneficiaries.
  • Encumbering, transferring, hypothecating, hiding, or disposing of in part any property, whether communal, quasi-communal, or personal, without written permission from the other spouse or a court order, except when catering to life’s necessities. In other words:
  1. You are banned from pledging property as your debt’s collateral, even if the lender does not change the ownership.
  2. The law forbids you from closing your joint checking accounts and transferring the money into a separate account.
  3. Obtaining a loan on community property is prohibited
  4. California laws bar you from removing valuables from your deposit box or money and giving them to another person to keep for you.
  • It is unlawful to move your underage children from California or obtain passports for them without your partner’s consent or court order. The legal obligation neither applies when the minor is already living in another state when the petition is filed nor does it require that a baby return to California if they are not living there during the petition filing.

Please note that an ATRO ensures no spouse legally transacts on the other’s behalf during their dissolution of marriage process. You can bring a motion to revoke or alter your ATRO if the order forbids essential actions or your partner can harm you.

Things That Are Not Considered ATRO Violations

The following do not constitute violations of an automatic restraining order:

  • Creating, modifying, or revocation of a will.
  • Eliminating a legal right of survivorship to property as long as you have filed and served your partner notice of the change before the change takes effect
  • Using your community property, quasi-community property, or personal separate property to cover the lawyer’s costs and fees to retain legal representation during the divorce proceedings is not a violation. Nonetheless, you should account to your spouse for using your community funds, and if a Family Law Attorney Real Property Lien exists, offer notice to your partner.
  • Execution and filing of a disclaimer
  • Creating an unfunded revocable or irrevocable trust

When One Spouse Breaches the Conditions of the Restraining Order

Violating an ATRO is a criminal offense under Penal Code 273.6. In many cases, violating temporary orders is a California misdemeanor crime.

However, the crime becomes a felony after further protective order violations. A felony crime is punishable by a prison term of three years and a fine of $1000. Before confirming your violation, the protected party should prove the following:

  • The California court issued an ATRO to the defendant
  • The restrained individual can adhere to the issued temporary order
  • The restrained party knows of their court-imposed restrictions
  • The restrained individual intentionally breached the issued ATRO.

Lifting Your ATRO

Following the dissolution of your marriage, the judge will lift the ATRO, and the California court might grant a final protective order against the party prone to violations and exhibiting wrong behavior. The conduct includes DV, verbal abuse, financial abuse, or emotional abuse. You must promptly file for divorce if you have suspicions that your partner is being wasteful of your financial properties or taking advantage of you because the court order will only take effect upon your filing for divorce.

There are exceptions where protective orders apply before the filing of divorce. Consult a competent attorney for professional advice on final and temporary protective orders. For the party who petitions for divorce, the ATROs come into effect upon filing for divorce. For the spouse being served the divorce papers, the ATRO becomes effective once they receive the notice. The ATRO stays in effect until the following:

  • The dismissal of your divorce proceedings
  • Issuance of a California court order altering the protective orders
  • When the judge renders judgment, resolving your divorce case

How Standard Protective Orders Differ from ATROs

Restraining or protective court orders require one party to show that the other partner engaged in wrongdoing. These protective orders are generally unilateral, safeguarding both the protected party and the restrained individual. They prohibit the restrained party from making any electronic contact or even physically coming close to the protected individual.

On the contrary, ATROs have fewer restrictions. An automatic restraining order is mutual, and both individuals face similar restrictions. No party should demonstrate any proof of wrongdoing. Both spouses are allowed to contact each other and even share a residence. An automatic restraining order restricts the spouses from changing their marriage’s financial status.

Obtaining a Kick-Out Order

Domestic violence (DV) is one cause of the dissolution of marriages. If you are a domestic violence victim and live with your partner, whom you fear can injure you or your minor children., you can pursue state protection through a kick-out court order. The order lawfully kicks the abuser out of their house for a specific duration.

The order can be instrumental when you, the victim, cannot tell your abuser that you want a dissolution of marriage because you live together. Once your spouse leaves your marital home, it is easier to file for dissolution of marriage and feel free and safe from the pain associated with the legal process.

California Family Code 6321 only allows the judge to grant a kick-out court order if:

  • You can prove that you legally possess your residence
  • Your spouse has attempted to assault or has assaulted you or your children
  • Either you or your children will suffer emotional or physical harm if your abuser remains in your family home

A judge has to decide whether the victim meets these elements. Verifying that they have the entitlement to own their residence is challenging. They can establish this by demonstrating any of the following:

  • Their name is in a mortgage or lease
  • They have previously paid rent
  • They have a well-established presence in that location.

While it is typical for both spouses’ names to be listed on a mortgage or lease, that is not always true. If your name is not on mortgage or rental documents, the judge can find that you are entitled to the asset if you and your partner shared it as your primary home.

Every California county requires different proof to demonstrate that the order is essential. While some require proving immediate and serious harm, others give the presiding judge discretion. Regardless of your case, you should offer proof of a severe threat of harm and domestic violence. An irrelevant or counterfeit request for the order can result in more harm than good in your case.

What Transpires After the Judge Grants Your Kick-Out Court Order?

Your abusive partner should leave your family home once the judge grants the kick-out court order for a given duration or until the legal matter gets a resolution. The temporary order suspends every legal right your partner has to your property. That means the order requires them to leave even when they are the leaseholder or tenant.

What Happens If the Judge Denies Your Kick-Out Court Order?

Judges do not always issue kick-out court orders. Although you might need more proof to verify their case, that does not imply that you cannot obtain a restraining court order. You can seek a non-emergency removal order.

California Family Code 6340 allows judges to issue removal orders if they find that emotional or physical harm would happen to any of the following:

  • the other spouse,
  • an individual under another party’s care, control, and custody, or
  • a son/daughter of the other partner or parties.

In other words, a judge can issue a child removal court order if you or your children might be injured if your abusive spouse remains in your matrimonial home.

While both removal orders and kick-out orders are temporary restraining orders designed to protect against emotional or physical harm, they are different. The variation between the two is the situation’s urgency. A judge will issue a kick-out court order without hearing from the abuser, while a removal order will allow the order’s subject to present their story’s version. Judges grant kick-out court orders during emergencies.

Find Qualified Legal Representation Near Me

ATROs are a complicated matter in family law. The law takes a violation of the order seriously, which is a crime. It is wise to engage a seasoned attorney if you have questions or concerns. Foos Gavin Law Firm can walk you through the legal process and protect your rights. We understand that emotions run high in the dissolution of marriages, and we can offer reasonable and objective legal representation. We can also assist you in understanding your available options, enabling you to make informed decisions. Please call our Sacramento legal office at 916-779-3500 to learn how we can help you.