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April E. Oliver: Be aware of automatic restraining orders

Know The Score

Posted: June 3, 2009 9:59 p.m.
Updated: June 4, 2009 4:55 a.m.
 
If a restraining order was to be imposed against you, you would probably be aware of it, right? But were you aware that once your petition for a divorce is filed with the court, automatic temporary restraining orders go into effect against you? Unfortunately, these ATROs can be a very serious trap for the unaware, particularly those who are not represented by an attorney in a family-law case.

While most parties to a divorce realize the divorce is a serious matter, they often fail to thoroughly read the forms they are signing. Perhaps this is because there is so much text on the forms. Perhaps it is because parties can be intimidated by the legal jargon. Be forewarned, the court will not excuse a violation of the ATROs because a party did not pay attention to the warning on the form.  

The second page of the summons states that:

“Starting immediately, you and your spouse or domestic partner are restrained from:

  • Removing the minor child or children of the parties, if any, from the state without the prior written consent of the other party or an order of the court;
  • Cashing or 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 minor child or children;
  • Transferring, encumbering, hypothecating, concealing, or in any way disposing of 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
  • Creating a nonprobate transfer or modifying a nonprobate transfer in a matter that affects the disposition of property subject to the transfer, without the written consent of the other party or an order of the court. Before revocation of a nonprobate transfer can take effect or a right of survivorship to property can be eliminated, notice of the change must be filed and served on the other party.”

What this means is that once you file for divorce, or once you are served with the summons and petition for dissolution, you are automatically restrained from canceling your spouse’s health insurance, from taking an equity line out on the family residence without your spouse’s permission, from gifting all the money in your bank account to your brother, etc.

It may seem clear to some parties that they would be restricted from doing these things during a divorce action. Unfortunately, I have seen many nonmalicious violations of the ATROs because one party simply did not realize they had to, for example, continue paying their spouse’s car insurance.

I have also encountered some inadvertent ATRO violations, where a party takes the children out of state for summer vacation every year and failed to realize that they were restrained from doing so this year because a divorce was pending.

That second page of the summons may seem like just another legal document full of confusing text, but a violation of those ATROs can constitute contempt of a court order. Do not let yourself be one of those inadvertent violators of the ATROs. Be sure you understand your rights as well as the obligations imposed on you as well as your spouse.

Never skim over your legal documents. If you have any questions, or if the terms seem confusing, it is well worth the cost of a consultation with an experienced family law attorney who may be able to save you much more money and heartache down the road.

April E. Oliver is an attorney with The Reape-Rickette Law firm, a family law practice. She can be reached at (661) 288-1000.  Her column represents her own views, and not necessarily those of The Signal.  “It’s The Law” appears Fridays and rotates between members of the Santa Clarita Valley Bar Association. www.SCVbar.org. Nothing contained herein shall be or is intended to be construed as providing legal advice.

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