In a prior post (from 2019, apparently. Didn’t realize it was that long ago), I went over the Automatic Temporary Restraining Order (i.e. the “ATROS”) that applies in California divorce cases. The governing law there was basically Section 2040 of California’s Family Code. I also have a similar post on New York’s ATROS which I also put out in 2019.
In this post, I’m going to over a more minor aspect of California’s ATROS, but a very important one nonetheless:
When is a California ATROS effective?
The answer to that question is, conveniently, also in California’s Family Code. It would make sense if it was in a section close to Section 2040 since you would assume code sections that go over similar topics would be grouped together.
You would assume that… but you’d be wrong. The governing law that answers the effectiveness question is actually Section 233 of the California Family Code. Because of course it’s in Section 233. Why would it not be?
Anyway, the answer is specifically in Section 233(a), which states:
“Upon filing the petition and issuance of the summons and upon personal service of the petition and summons on the respondent or upon waiver and acceptance of service by the respondent, the temporary restraining order under this part shall be in effect against the parties until the final judgment is entered or the petition is dismissed, or until further order of the court.”
As usual, I’ve bolded and underlined the important part of the statute, which in this case is basically the first half. The ATROS is effective on the petitioner — in other words, the spouse who files for divorce — “upon filing [of] the petition and issuance of the summons”. In other words, because the petitioner is the one who filed the case — and, thus, determined when the filing took place — the ATROS is effective on the petitioner right away.
On the other hand, the respondent spouse did not file the case and, thus, did not determine anything about timing or scheduling. To compensate for that, the ATROS is only effective on the respondent spouse “upon personal service of the petition and summons” or “upon waiver and acceptance of service by the respondent”. The latter means that the respondent waives personal service and agrees to be served the petition and summons some other way. In my opinion, the most common way would be the Notice and Acknowledgement of Receipt method using Judicial Council form FL-117 as described in Section 415.30 of the California Code of Civil Procedure.
Latest posts by Andy Chen (see all)
- Agreeing to a lower amount of California child support - July 4, 2021
- California’s Best Interests of the child standard - July 2, 2021
- When is a California ATROS effective? - June 26, 2021