Automatic Restraining Orders Created by Family Code Section 2040
Section 2040 of the Family Code lays out some very important although often overlooked laws relating to Automatic Temporary Restraining Orders (or ATROs) that apply when one party files for divorce against the other. The orders become effective against the Petitioner once the Petition is signed and against the Respondent once he/she has been served with process.
Highlights of 2040
We will touch briefly on some of the highlights of this important Family Code section. If you want to get more in-depth we encourage you to read the statute. We will include the text of the statute below.
Removal of Children Prohibited
Section 2040 (a)(1) starts out by placing a prohibition on the removal of children from the state. Basically, the summons of the divorce carries with it a requirement that neither party abscond with the children after a divorce has commenced. Morevoer, neither parent is allowed to apply for a new or replacement passport for the child. This restraint is obviously designed to make certain the children are not removed from California’s jurisdiction.
Transferring, Spending, Hiding, or Encumbering Property is Prohibited with Some Exceptions
Section (a)(2) restrains the parties of a divorce from transferring, hiding, or spending any property or money. This is the general rule however there are four main exceptions. The first exception is that a party can transfer, spend, or encumber property if they have the written consent of their spouse (the other party). The second exception is that a party can dispense of property under an order from the court. The third exception is that they can spend money pursuant to the normal course of business for the necessities of life. For example once a party has been served with divorce paperwork they can continue to buy groceries or gas for their car as normal. Beyond things like groceries, it is certainly arguable what constitutes the necessities of life. There is certainly some wiggle room, but parties that push this too far could find themselves in trouble. The fourth exceptions is that parties to a divorce can go out and spend community or separate property to hire a divorce or family law lawyer. Using substantial money to hire an attorney is not a prohibited action under the ATROs of section 2040. Any proposed extraordinary expenditures should only occur with at least five days of notice and will have to be accounted for to the other party and the court.
Automatic Restraint Against Making Changes to Insurance Plans
Section 2040 (a)(3) prohibits changes to insurance policies after the commencing of divorce proceedings without either a written agreement, approved by both parties, or a court order. This prohibition extends to all types of insurance policies, including, but not limited to auto, life, health, property and disability insurance. The purpose of the prohibition is maintain the status quo with regard to insurance coverage during the pendency of a case and to protect each party.
Both Parties are Restrained
One common misconception is that a filing party may think that only their spouse is restrained. However, as mentioned above the ATROs apply to both parties.
Find the Family Code Statute Below
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.
(c) In all actions filed on and after January 1, 1995, the summons
shall contain the following notice: