Automatic Restraining Orders

In a California Family Law matter, automatic restraining orders are contained on page 2 of the Summons. They are effective automatically as to the Petitioner upon filing with the court, and as to the Respondent when he or she is served.

These restraining orders are often misunderstood, but parties should review them carefully. One thing I will tell you often in explaining legal procedures you may have heard before - ignorance is no excuse for violating the law. Stated otherwise, if you are representing yourself in a legal proceeding you are held by the court to the same standard as an attorney. It is no excuse that you did not know or did not understand.

Those of you reading this who are represented by an attorney have already had these automatic restraining orders explained to you. But I know many of you are representing yourself so these articles are intended to inform the parties not experienced in the process.

The automatic restraining orders provide four restrictions:

     1. Neither party is to remove minor children from the jurisdiction of the court without the other party's written permission or an order of court. The jurisdiction of the court is the county in which you are located. Some attorneys will tell you this means removing the children "for the purposes of changing their residence" but does not preclude you from taking the children out of county for a vacation or brief trip. I would caution you to be very careful and obtain the other party's permission or a court order (especially at the beginning of a divorce before temporary custody orders are in place) out of an abundance of caution. If the other party learns you have taken the children, say to visit relatives, they may mistakenly believe you are moving or hiding the children and bring a motion compelling you to return them. It's best to coordinate any trips with the children in advance with your spouse. After all, if they were taking your children somewhere, you would want them to let you know where you are going and when you will be back, right?

     2. Neither party is to cash out, borrow against, cancel, transfer, dispose of, or change the beneficiaries of any insurance policy. That means neither of you can cash out, borrow against, or transfer any whole life insurance policy, change the beneficiary of any life insurance policy, or drop any insured from your insurance policy. If you insure your spouse on a life, health or auto policy, you must maintain that policy as is until judgment has been entered or you are able to obtain a court order allowing you to do so. Many people upon filing a divorce want to drop their spouse from an auto or health policy. Don't do it. You will have to reinstate them at your expense.

     3. Neither party is to transfer, encumber, conceal, or dispose of any property, whether community or separate property, without the written consent of the other party or an order of court, except in the "ordinary course of business."  This means parties cannot sell property, obtain a loan with property as collateral, give it to someone else, or even throw it away. Many people have a problem understanding this especially when they believe it is their 'separate property'. But sometimes separate property can have a community interest. It is always better to secure the other party's consent. If the other side has no claim against the property, obtaining their permission shouldn't be a problem. Finally, you can use monies in a joint account to retain counsel to represent you, and to pay community bills as they become due.

     4. Nether party shall create or modify a nonprobate transfer in a manner that effects the disposition of property. That means if their is a joint will or trust that determines the disposition of personal property or real estate, you cannot change your will or trust without the other party's permission or an order of court. However, when title to real property provides for right of survivorship, that right of survivorship can be changed after notice to the other party. In other words, title to property as joint tenants with right of survivorship can be changed to tenants in common after formal written notice to the other party.

These restraining orders appear fairly straightforward, but as applied to particular circumstances they can be difficult. If you have any doubt about a particular action you are contemplating, my advice is to get some good advice. Often obtaining your spouse's or the court's permission is easier than you think. Also, making a mistake at the beginning of what may be a long proceeding can label the mistaken party as someone not inclined to 'follow the rules'.