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Marcus Esq

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Don't Forget the Standard Family Law Restraining Order!

Oftentimes the filing of a divorce petition brings with it a vast range of emotions on the part of a new divorcee. These emotions can run the spectrum between fear, helplessness, and even the hope for a better future. However, few new divorcees appreciate that with the commencement of the case, several important restrictions immediately take effect which can have a significant bearing on the future of the case. Commonly referred to as the "ATROs" by family law attorneys and judges (standing for "Automatic Temporary Restraining Orders"), these standard restraining orders bind the divorcee upon the filing of the Petition and the issuance of the Summons. Conversely, the ATROs bind the responding party upon the lawful service of the Summons and Petition on that party, most often by the means of personal service. These ATROs remain in effect and binding until judgment of dissolution is entered, the case is dismissed, the judge orders otherwise, or the parties reach a written agreement.

Since the ATROs are located on the reverse side of the "Summons (Family Law)" document, few parties actually take the time to read and understand the restraining orders. Problems often arise when the parties act in violation of the ATROs without even being aware they are violating a court order. In some cases however, the transgressions are willful, and often the result of anger and the desire to exact revenge. Below are the three of the most common ATROs related questions and scenarios:

1. "I just filed my Summons and Petition, can I take my kids on vacation to Nevada to visit their cousins? The kids are really looking forward to it and we go every year." The answer to this question should be straightforward after one reads the ATROs, but unfortunately it is a question that gets asked far too often. The answer is no, the minor children cannot be taken out of California, unless the vacationing party obtains the written permission of the other party, or a court order. This is true regardless of whether the children have expressed their desire to travel, and even if there is no ill intent on the part of the vacationing spouse.

2. "I was just served with Summons and Petition! I can't believe my wife is doing this! I'm going to cancel her off my health insurance at work!" Nothing draws the ire of a family law judge more than hearing that a party has just cancelled the health insurance of a dependent spouse. This retaliatory action is very common and constitutes a clear violation of the ATROs.

3. "I just filed my Summons and Petition. All the money in our joint account is mine, I earned it through my blood, sweat and tears! I'm going to transfer all of that money into a new account in my name only and never tell my spouse about it!" Here, the working spouse fails to understand that not only is the money earned during marriage most likely not his or her separate property, but even if it were, the ATROs guard against the concealment of separate property as well as community property (absent an exception). Of course, if it can be proven that the transferring spouse's intent was to conceal and permanently dispossess the nonworking spouse of the funds, then such conduct would constitute a very clear violation of the ATROs.

In conclusion, a violation of the ATROs is no small affair, and upon the proof of a violation being presented and accepted by a judge, the violating party may be subject to significant penalties. Such penalties are not limited to monetary sanctions, but include the possibility of being held in contempt of court, a serious transgression with a punishment that may include jail time. Given the common pitfalls listed above, it is important to read and understand the ATROs, keep emotions in check, and immediately seek legal counsel to avoid a potentially disastrous outcome.

 

The above article is not intended to constitute legal advice and should not be relied upon in lieu of a consultation with a licensed attorney. The factual scenarios inherent in each case differ, and Marcus & Associates takes no responsibility for the use, or misuse, of the legal authority, arguments, or reasoning set forth above.


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Marcus ESQ

Marcus & Associates

28245 Ave Crocker, Suite 106
Valencia, CA 91355
661-251-6000
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