Automatic Restraining Orders Created by Family Code Section 2040
California Family Code Section 2040 outlines several important, yet often overlooked laws regarding Automatic Temporary Restraining Orders (ATROs) that take effect when a divorce is filed.
These orders are automatically applied:
- To the Petitioner upon filing and signing the Petition
- To the Respondent once served with the divorce papers
Understanding these orders is essential for anyone involved in a California divorce.
🔒 Highlights of Section 2040
Below are the key components of Family Code §2040, summarized for clarity and practical use. (The full statutory text is included at the end of this post.)
🚫 1. Removal of Children Is Prohibited
Section 2040(a)(1) restricts either parent from:
- Taking children out of state
- Applying for a new or replacement passport for the child
These measures are designed to keep children within California’s jurisdiction during the legal proceedings.
💰 2. No Transferring, Spending, Hiding, or Encumbering Property—With Exceptions
Section 2040(a)(2) prohibits either spouse from:
- Transferring, hiding, or encumbering property
- Spending money beyond necessities
✅ Exceptions to This Rule:
- Written consent from the other party
- Court order permitting the action
- Ordinary course of business or necessities of life (e.g., groceries, gas)
- Retaining legal counsel—spending funds to hire an attorney is allowed
Any proposed extraordinary expenses must be:
- Notified to the other party at least 5 business days in advance
- Accounted for to both the court and the other party
🛡️ 3. No Changes to Insurance Plans
Section 2040(a)(3) bars either party from changing or canceling any insurance coverage, including:
- Health
- Life
- Auto
- Disability
- Property insurance
Only written mutual consent or a court order can authorize such changes. This provision ensures that insurance protections remain intact during the divorce process.
⚖️ 4. Both Parties Are Equally Bound
A common misconception is that only the Respondent is restrained. In fact, ATROs apply to both parties:
- The Petitioner is restrained upon signing the divorce petition
- The Respondent is restrained upon being served
📜 Full Text of Family Code Section 2040
- (a) In addition to the contents required by Section 412.20 of the Code of Civil Procedure, the summons shall contain a temporary restraining order:
(1) Restraining both parties from removing the minor child or children of the parties, if any, from the state, or from applying for a new or replacement passport for the minor child or children, without the prior written consent of the other party or an order of the court.
(2) Restraining 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.
Notwithstanding the foregoing, nothing in the restraining order shall preclude a party from using community property, quasi-community property, or the party’s own separate property to pay reasonable attorney’s fees and costs in order to retain legal counsel in the proceeding. A party who uses community property or quasi-community property to pay his or her attorney’s retainer for fees and costs under this provision shall account to the community for the use of the property. A party who uses other property that is subsequently determined to be the separate property of the other party to pay his or her attorney’s retainer for fees and costs under this provision shall account to the other party for the use of the property.
(3) Restraining both parties 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.
(4) Restraining both parties from creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer, without the written consent of the other party or an order of the court.
(b) Nothing in this section restrains any of the following:
(1) Creation, modification, or revocation of a will.
(2) Revocation of a nonprobate transfer, including a revocable trust, pursuant to the instrument, provided that notice of the change is filed and served on the other party before the change takes effect.
(3) Elimination of a right of survivorship to property, provided that notice of the change is filed and served on the other party before the change takes effect.
(4) Creation of an unfunded revocable or irrevocable trust.
(5) Execution and filing of a disclaimer pursuant to Part 8 (commencing with Section 260) of Division 2 of the Probate Code.
