Automatic Restraining Orders

What are automatic restraining orders?

When you get divorced, something called “automatic restraining orders” go into effect. You can find a list of the orders on page two the Summons, form FL-110. These orders are designed to prevent one party from making changes to the status quo regarding finances and minor children.

The automatic restraining orders state the following:

"Starting immediately, you and your spouse or domestic partner are restrained from:
1. removing the minor children of the parties from the state or applying for a new or replacement passport for those minor children without the prior written consent of the other party or an order of the court;
2. 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 minor children;
3. 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
4. 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. 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.

You must notify each other of any proposed extraordinary expenditures as least five business days prior to incurring these extraordinary expenditures and account to the court for all extraordinary expenditures made after these restraining orders are effective. However, you may use community property, quasi-community property, or your own separate property to pay an attorney to help you or to pay court costs."

What does that mean?

Restraining Order No. 1 means that once the divorce has been filed, you cannot move your children to another state or another country without written permission or a court order. It also means you can’t travel out of state with the kids without written permission or a court order. You also may not apply for new passports.

Restraining Order No. 2 prevents any party from making changes to insurance policies where those policies are held for your benefit, for the other parties’ benefit, or for your minor children’s benefit. For example you can’t remove your spouse from your health insurance or cancel their automobile insurance.

Restraining Order No. 3 prevents either party from getting rid of any property in any way, without written permission or order of the court. There is an exception for things done as a usual part of your business or for necessary life expenses. This order would prevent someone from deciding to sell (or gift) a house during the divorce, but wouldn’t prevent someone from selling jewelry so that they could make rent.

Restraining Order No. 4 is related to estate planning. This would cover things like changing a will or trust beneficiaries. This issue does not come up as commonly and if you think that it will be a problem for you, you should seek legal advice through a self help center at your county courthouse or an attorney.

The summons also states that you need to give 5 business days notice if you want to make an “extraordinary expenditure” and to keep track of those costs so you can report to the court what you did and why. An “extraordinary expenditure” is something that is not part of your usual living costs. For example, buying a new car is generally an extraordinary expense. Buying groceries is not. You are allowed to use property to get legal assistance or pay court costs.

Why are the automatic restraining orders important?

The restraining orders are there to protect the parties while the divorce is ongoing. With these orders in place, the court knows that there should not be any emergencies, for example where suddenly someone doesn’t have health insurance and incurs high medical bills.

What happens if someone does not follow the automatic restraining orders?

When a party does not follow any court order, the other party will need to notify the court of the violation. This generally involves filing a motion. Once the court is aware of the violation, it has a variety of options available to ensure compliance going forward and to try to fix any damage done by the violation. For example, the court can order that the party in violation provide an accounting of funds moved in violation of an order or order reimbursement of those funds. What the court does depends on each case.

Have questions about automatic restraining orders? Contact Romanovska Law.

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