(650) 735-2436   (209) 643-2436

California Automatic Temporary Restraining Orders in Divorces (CA Family Code section 2040)

Everyone’s divorce is different. I haven’t checked every state, of course, but I would venture a guess that that applies to divorces all over. It is not specific specific to any one state in the US.

One scenario that sometimes occurs is the following. Spouse A and B are married, but there is a disparity in earnings between the two. For example, only A works a job while B stays home to raise the children. Suppose that A and B then divorce. What, unfortunately, sometimes occurs is that A then attempts to exercise financial leverage to coerce B during the course of the divorce. I’ve seen this happen both in situations where A has filed for divorce and B has filed for divorce. In the former, A may feel entitled to, for instance, hide significant community property because A feels that property belongs to them since it came from their earnings. In the latter, A may feel entitled to cut B off financially by, for example, hiding assets as a way of retaliating for B filing a divorce in the first place.

What is the spouse in B’s position to do to protect themselves? In California, B is protected by something called an Automatic Temporary Restraining Order — commonly called an “ATROS” — as defined in California Family Code section 2040 and that is the subject of this post.

Most people have heard of the term “restraining order” which is generally a court order prohibiting (i.e. “restraining”) one party from doing something. A restraining order might be issued by a family court in a domestic violence situation, for example. Typically, a restraining order must be affirmatively applied for. An ATROS, however, is different in that no application is required. An ATROS, as the name implies, goes in to effect automatically whenever a divorce is filed in California.

If you’re served divorce papers in a California divorce case, one of the documents you will be served is the Summons (California Judicial Council form FL-110). The terms of the California ATROS are described in both English and Spanish on page 2 of the ATROS as pictured below.

Page 2 of a California Divorce Summons

As I mentioned, the authorizing statute for a California ATROS is California Family Code section 2040, which prohibits either spouse during a divorce case from doing any of the following:

  • Removing the minor children, if any, of the parties from California without the other parent’s permission;
  • Applying for replacement passports for the minor children, if any, of the parties without the other parent’s consent;
  • Transferring, encumbering, concealing, or otherwise disposing of any property that may belong to the community unless it is in the usual course of business or for the necessities of life without a court order or consent of the other party;
  • Canceling or changing any insurance policy (e.g. health, automotive, etc) of any kind that may cover the other party.
  • Creating or modifying any type of nonprobate transfer that may affect disposition of property to the other party.

These bullet points are my paraphrasing of the various sections of Section 2040 and are not verbatim or exhaustive. You should refer to the precise wording of Section 2040 to see whether a particular act is permitted under a California ATROS or not.

Under California Family Code section 233(a), a California ATROS remains in effect until the earliest of any three events: (1) the divorce petition is dismissed, (2) final judgment in the case is entered (i.e. the divorce case finishes), or (3) further order of the court. Depending on the situation, a California family court may modify an ATROS to permit certain acts (e.g. to allow one party to sell property) that would otherwise be forbidden.

To go back to the hypothetical I described at the beginning, an ATROS would protect spouse B by preventing spouse A from transferring community property to others as a way of preventing B from getting it. Such transfers by A are ultimately pointless in California due to something that I learned as the Dekker Exception. I made a video about it on Youtube channel a while back. Here’s the video. Go over to my channel to see more videos.

As always, I hope this post has been helpful. It is, necessarily, just a summary or superficial discussion of the idea of an ATROS as it applies in California. If you have a situation involving an ATROS in a California case, I recommend you find a lawyer in your area that you can have a discussion with about the particulars of your situation.

The following two tabs change content below.

Andy Chen

Andy I. Chen is a lawyer licensed to practice law in California and New York. Andy maintains offices in Los Altos, California and Modesto, California. Under the New York Court of Appeals' 2015 decision in Schoenefeld v. State of New York, Andy does not accept cases from those in New York state. He does, however, know many lawyers in New York state and would be happy to make a referral.

Submit a Comment

Your email address will not be published.