California is a community property state and there is a presumption that all property (real or personal) that is acquired during a marriage is community property. That is why it is inherently important to understand what a party is restricted from doing upon the filing of a dissolution, legal separation, or nullity of marriage in order to ensure that the parties are in full compliance with the law. Failure to do so can lead to serious consequences.
What are ATROS?
Cal. Fam. Law Code § 2040 governs the actions of both parties when a divorce action, legal separation, or nullity of marriage is filed. These restrictions are called Automatic Temporary Restraining Orders, otherwise known as “ATROS.” ATROS are a set of automatic restraining orders that come into effect upon the filing of a divorce action, legal separation, or nullity of marriage. They can be found verbatim on the back of the Summons (FL-110 form).
When do the ATROS come into effect?
ATROS orders immediately bind the filing spouse (“Petitioner”) upon the filing of the Summons and Petition for dissolution/legal separation/nullity of marriage. It binds the non-filing spouse (“Respondent”) upon service of the Summons and Petition. There is an exception, however to the personal service rule, including what Cal. Fam. Code § 233(a) calls a “waiver and acceptance of service,” which allows the Respondent to waive personal service.
What effect do the ATROS have on children subject to a dissolution or legal separation proceeding?
The ATROS orders specifically instruct parents not to remove children subject to a dissolution or legal separation proceeding from the state of California. The reason behind this rule is to ensure that the child’s best interest is first and foremost. This involves keeping the “status quo,” meaning keeping stability in the child’s life. Taking a child outside of the state after a dissolution or legal separation proceeding has been filed can potentially lead to national or international child abduction issues and may require the involvement of law enforcement and even the court. If the parties are amicable and can agree to allow another parent to take the child out of the state, this can be done by written consent of the other party or order of the court prior to removal of the child or children.
What effect do the ATROS orders have on community or separate property related matters?
The ATROS orders restrain both parties from disposing of any property, real or personal, regardless of whether the parties believe it is community, quasi-community, or separate property, without the written consent of the other party or an order of the court. As with most rules, the ATROS orders contain important exceptions. For example, Cal. Fam. Code § 2040(a)(2) allows the parties to dispose of property “in the usual course of business or for the necessities of life.” What does this really mean and how does one measure “necessities of life”? While the Code does not provide a clear answer, it is important to discuss any potential transactions with an attorney prior to moving forward as strict guidelines must be adhered to.
Cal. Fam. Code § 2040(a)(2) allows community property to be used to pay for reasonable attorney’s fees and costs in order to retain legal counsel in the proceeding. When enacting this exception, the Legislature’s intent was to encourage parties to have an equal opportunity to retain legal counsel to represent them in a divorce or legal separation matter. However, a party who uses community property to pay his or her attorney’s retainer for fees and costs must account to the community for use of the property.
These exceptions can be a bit tricky to understand given the broad language of the Code. That is why It is important to always check with your family law attorney regarding the details of your particular case.
When do the ATROS orders stop being in effect?
The ATROS orders stay in effect until there is a court order that modifies them, when the Petition is dismissed, or when there is a final judgment that has been entered in the matter.
This area can be complicated, and the advice of an experienced family law attorney is important. Our team of experienced attorneys is prepared to work zealously for you to provide you with the legal representation you need.