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Automatic Temporary Restraining Orders

Automatic temporary restraining orders

Image courtesy: www.tacylaw.com

Automatic Temporary Restraining Orders (ATROS) are mutual orders that are effective upon service of the summons (with the Petition to Divorce, Annul, etc.).

They are intended to prevent both parties from doing the following:

Removing the minor child or children of the parties, if any, from the state without the prior written consent of the other party or an order of the court. This often doesn’t apply in situations where the child is already living in another state when the petition is filed, nor does it require that a child be returned to the other state if he or she is not living there at the time of the petition.

  • Transferring, encumbering, hypothecating, 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.
  • Taking out a loan on community property.
  • Promising property as security or collateral for a debt.
  • Closing joint checking accounts or transferring the money into a separate individual account.
  • 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 child or children for whom support may be ordered.
  • Cashing in their life insurance policy and depositing the proceeds into a separate account.
  • Changing the beneficiary on their life insurance policy.
  • Removing the spouse or children from the health, dental or vision insurance policy.
  • Removing their spouse from their automobile insurance policy even if not living together.

There are some actions that are generally exempt from the ATROS such as:

  • Parties are generally permitted to use any property to pay reasonable attorney’s fees and costs in order to retain legal counsel as well as encumber their community interest in community real property to secure legal counsel. However, when doing this, the party using community funds must account for the use of said funds to the other.

Parties are typically not restrained from

1. Creating, modifying, or revoking a will

2. Creating an unfunded trust

3. Executing and filing a disclaimer of testamentary and other interests

4. Revoking a non-probate transfer (including a revocable trust), as long as notice of the change is filed and served on the other party before it takes effect.

“Nonprobate transfer” refers to an instrument, other than a will, that makes a transfer of property on death, including a revocable trust, pay on death account in a financial institution, Totten trust, or transfer on death registration of personal property. It does not include a provision for the transfer of property upon death in an insurance policy or other coverage held for the benefit of the parties and their child or children for whom support may be ordered.