automatic temporary restraining orders (atros) (the world according to tristan...)

Upon the filing of a dissolution of marriage case, automatic temporary restraining orders come into effect on the Petitioner and on the Respondent when service is accomplished. Once in effect, the ATROs protect both parties with respect to their assets, non-probate transfers, insurance coverage, and removal of the minor children from the State of California.

Both parties are restrained from 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.

The terms of the ATROs also restrain both parties from 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 and requiring each party to notify the other party of any proposed extraordinary expenditures at least five business days before incurring those expenditures and to account to the court for all extraordinary expenditures made after service of the summons on that party. Both parties are restrained from removing the minor child or children of the parties, if any, from the state, and from creating or modifying a non-probate transfer in a manner which affects the disposition of the property subject to the transfer without the prior written consent of the other party or an order of the court. Violations of the terms of the ATRO's may have serious consequences.  A party may find himself or herself, or the children, without health insurance, or suddenly be confronted with the removal of a child from California. Parties should honor the ATRO's to the letter.

Parties often plead ignorance as to the terms and extent of the automatic temporary restraining orders.  However, each order is listed on the reverse side of the summons.  Furthermore the orders protect the assets, and preserve a status quo giving the parties time to obtain legal advice and plan more carefully.

This page is about dissolution of marriage, commonly termed "divorce." I have written about grounds for divorce, temporary orders, premanent divorce orders and how issues related to a divorce action, such as child and spousal support, are determined in California.

Under a divorce case the court addresses the division of community property (assets and debts) and a litany of other issues according to California community property law, and in some cases, as agreed upon (see premarital agreements).

temporary orders in divorce cases

A divorce involves termination of marriage status, and resolution of the rights and duties that arise from the marriage with respect to custody, visitation, division and confirmaton of property (including reimbursements), parentage, premarital agreements, division of retirement interests, support and insurance.

Undercurrents and other symptoms of a failed marriage may already begun, but a divorce (or separation or nullity) legally begins when the Petitioner files a "Petition." The other party is called the Respondent and files a "Response," unless the case proceeds by default. Upon filing, a party may seek emergency or temporary orders, which could be in effect pending settlement, trial, or futher hearings. These may include payment of child support, spousal support, use of property, payment of debts, custody and/or visitation orders and quite commonly, sadly, domestic violence restraining orders.

grounds for divorce

There are only two grounds for divorce in California. The first is "incurable insanity," which is rarely cited (I have never had a case where this is cited). The second ground "irreconcilable differences," is virtually always declared in the Petition (Form FL-100) and the Response (Form FL-120). The object of the marriage must have broken down and there must be no possible means to remedy the relationship. Fault does not play a role in California, a 'no-fault' state, and traditional grounds such as desertion, abandonment, cruelty, or adultery which existed in many countries prior to the onset of 'no-fault' laws are not required.

contested divorce cases

The issues in a divorce may be contentious, in which case the parties may present arguments to the court at various stages of the case, including at evidentiary settings, trial, or various separate (bifurcated) trials. Common areas of dispute are custody and visitation, and who spends time with the children, and when.

The issue of child and spousal support is also an important one. The payment of child support is connected to the time that the children spend with each parent (it's their time, not the parents), and are deemed supported when there (non-custodial Parent %), and strongly driven by an individual's tax filing status and income. Child support issues are generally resolved by using computer software, which calculates the formula provided in the Family Code (FC 4055).