Restraining orders protect one or more people from different kinds of harm. Judges issue court orders according to the harm the applicant seeks or the protection they need from the other party. An automatic temporary restraining order is a special order issued during a divorce proceeding; it ensures that no party in the divorce depletes assets. Judges use this order automatically after one party files for a divorce. It prevents divorcing parties from hiding assets from each other so as not to split the property as required by the law.
You need the help of a skilled restraining order attorney to understand how this order works, its benefits and shortcomings, the application process, and possible consequences of violating it. Your attorney can also assist in filing for the order or fighting the order, depending on whether you are the protected or restrained person.
An Overview of Automatic Temporary Restraining Orders
Restraining orders are one way courts protect some people from harm by others. Depending on the underlying issue, people who seek a court’s protection do so to prevent the restrained person from doing something or compel the person to take action. For example, a restraining order can protect one person from coming into contact with another person if there is a report of abuse or harassment. Most of these orders protect the applicant from physical or emotional harm. However, some protect victims of economic abuse, and others protect the public from nuisances.
Automatic restraining orders are protective orders issued only in certain situations. They are precise because they prevent one party (the restrained person) from specific actions that could harm another party (the protected person). Generally, automatic restraining orders are used in divorce cases. Unlike most restraining orders that protect victims of abuse from physical harm, threats, and harassment, these orders preserve the couple’s bank accounts and financial and monetary assets. Family law judges can use these orders to ensure a smooth divorce process regarding property division.
In a divorce proceeding, there is usually a need to ensure fair property division to ensure both parties are well provided for when they separate. However, one party can deplete their assets before the final divorce agreement to avoid splitting them with their ex-partner. There are also cases of one partner hiding assets to keep more family property than their ex-partner. These issues make it difficult for family court judges to judge divorce cases fairly. It is also unfair for the party that loses substantial assets due to such actions.
Thus, automatic restraining orders provide immediate legal protection by restricting the actions of one or both parties in a divorce case. The orders remain in effect until the judge makes the final ruling in the divorce cases. They can restrict the transfer and sale of community assets and insurance charges. The judge can add other restrictions in the order based on the underlying issues in a divorce case. For example, they can restrict the movement of children until custody issues are discussed and finalized.
In summary, this is what an automatic restraining order can do:
- It is a temporary order you can obtain or receive when you or your partner files a divorce case
- The order remains in effect until a judge holds a formal hearing to determine critical matters and make the final orders
- It protects your interests while your divorce case is ongoing.
The Benefits of an Automatic Restraining Order
Generally, protective orders protect one or more parties from physical, emotional, or financial harm. Although automatic restraining orders provide different protection, they are instrumental in divorce cases. Here are some of the benefits you can derive from one:
Protection of Assets
A divorce is difficult for all parties involved, including the couple, children, and family members. A divorce can be complicated when there are underlying issues in a marriage. You or your partner can use the divorce to get revenge or get even. You can also make irrational decisions out of jealousy or to punish your partner.
An automatic restraining order protects assets in divorce, whether community or separate assets. By doing so, the court can protect both parties’ financial well-being. It ensures that each party receives what they deserve after a divorce, regardless of their contribution to the failed marriage.
Prevention of Child Abductions
The two main areas of contention in a divorce case are usually assets and children. Child abductions are not unusual in divorce cases. One party can take away the children, not because the other parent does not deserve them, but to deny their parental rights, punish, or get even with them. Children suffer the most when these issues happen. Family courts issue orders to keep the children within a court’s jurisdiction so their problems can be dealt with legally and amicably. The order ensures that the children’s best interests are considered during the divorce.
Maintenance of the Status Quo
Family courts need to determine divorce cases in the fairest manner possible. This is easy to achieve when all issues are tabled in court as they are. The court needs to know what the couple has, individually and separately, to make a fair ruling in property division. Without an automatic restraining order, one or both parties can hide, sell, or give away assets, making it difficult for the court to determine precisely what the family has for a fair distribution.
Thus, an ATRO prevents actions that could complicate property division and custody determinations during a divorce case, making it difficult for the judge to make a fair settlement.
Types of Restrictions You Can Find in an Automatic Restraining Order
Before a judge issues an automatic restraining order, they must understand the underlying issues that one or both parties in a divorce proceeding are experiencing. This will help them determine the restrictions to include in the order. Generally, you can find these restrictions in the order:
No Property Transfers
An automatic restraining order can prohibit any property transfer, sale, or distribution by the divorcing couple. This ensures all their community properties are intact for fair and accurate division. If this order is included in your automatic restraining order, you are prohibited from concealing or disposing of any property during the divorce process or the period of the order. If you must dispose of an asset, it must be with the other party's written consent or after obtaining a court order.
A restriction on property transfer applies mainly to community and quasi-community property.
No Concealing Financial Assets
This order prevents one or both parties from hiding or concealing financial assets from each other or the court during a divorce proceeding. It prohibits the couple from moving money from one account to another or failing to report all their cash to avoid sharing their financial assets with the other party. A violation of this order will likely occur if you fail to report or transfer money with the intent to keep it out of your partner’s hands.
No Changes in Insurance Policies
An automatic restraining order can prohibit both parties from changing their insurance policies, including auto, health, disability, and life insurance. If you have your partner as a beneficiary to your insurance policy, you could be tempted to make changes after your marriage fails. This order applies mainly to policies that benefit the other party or children.
If one or both parties need to make some changes to their insurance policy, they must seek written consent from each other or obtain a court order. You can face severe consequences if you violate such an order, including a possible jail sentence for contempt of a court order.
No Non-Probate Transfers
A non-probate transfer is one way in which one person can transfer assets by bypassing a normal probate process. The transfer is usually not subject to the supervision of a probate court, and beneficiaries can claim the transferred assets directly.
You can receive this order through an automatic restraining order; it restricts the parties from modifying or creating a non-probate transfer on their assets, including joint accounts and insurance policies. If you must execute a non-probate transfer of your assets, you must do so with your partner's consent or obtain a court order. Otherwise, you will violate the court order.
Child Removal Orders
This order ensures that children belonging to the divorcing couple remain within the state until after the court makes the final order on child custody, visitation, and child support matters. If you disagree with your partner, you or they can be tempted to take the children out of the court’s jurisdiction, where they are inaccessible to the other parent. Doing so will severely violate a court order and can result in severe penalties.
This order prohibits you or your partner from removing your children from the state or from access by the other parent. It can specifically prohibit both parties from obtaining passports for the children without the other parent’s consent or a court order.
However, there are exceptions in some of these orders. For example, one or both parties can transfer, sell, or dispose of their assets if it is done under the following circumstances:
- To raise money for a reasonable living expense for one or both parties
- It is an ordinary and usual act in the course of an investment or business
- One or both parties need to raise money to pay for their court and attorney expenses
Thus, an automatic restraining order does not stop you from using money for reasonable expenses after filing for a divorce; you can pay your household bills, pay for grocery shopping, and cater to other costs. However, you will need your partner’s consent. Or a court order to make a significant transaction. Like selling or buying a vehicle or real estate property. The ATRO also restricts both parties from incurring new debts that could affect the marital estate during the divorce process, including maximizing your credit card debt or borrowing against your homeowner’s credit line.
The restraining order remains in effect for the period of the divorce proceeding. It will automatically expire once the final decree is made by a family court or after you enter a support agreement into the family court record.
How Courts Issue Automatic Restraining Orders
California courts issue automatic restraining orders once an individual or couple files for a divorce. As its name suggests, the order is automatically issued with the divorce papers in jurisdictions where these orders exist. Thus, when you or your partner files for a divorce and is issued divorce papers to serve the other party, the documents will include an automatic restraining order.
When you serve the other party or are served with divorce papers, you must go through all the documents therein, including the restraining order. Ensure you understand the orders in the automatic restraining order to avoid legal problems through a violation. A skilled restraining order attorney will ensure you understand the provisions of each order. They will also discuss possible consequences of violating any of the orders, just to caution you against it.
An automatic restraining order does not just apply to one party (the one to whom the divorce papers are served); it applies to both parties in a divorce case. Thus, the party applying for a divorce must also understand the contents of the automatic restraining order. They, too, are subject to criminal penalties for violating any of the court-issued orders.
Therefore, courts issue these orders automatically once a party or couple files for divorce. The order remains in effect until the judge issues the final order regarding their divorce, dismisses their divorce petition, or the court orders otherwise.
Consequences of Violating Automatic Restraining Orders
Automatic restraining orders are as important as other court-issued orders, meaning that they must not be violated in any way. You may not take the order seriously because it is issued when a divorce petition is filed. However, you should consider the order formally issued in a court by a judge. For this reason, the order is enforceable under the law, just like other restraining orders. Violating it is a severe violation and can lead to severe penalties and other consequences you must be aware of.
If you are accused of violating the order, a skilled restraining order attorney can help you understand the legal implications of violating an automatic restraining order. This will prepare you for what to expect.
Violating an automatic restraining order occurs when you fail to abide by one or more order conditions. The order can be minor or significant. As long as the order is contained in the restraining order, you should abide by it throughout the restraining order.
Judges treat such violations according to the severity of the breach and whether or not the violation is repeated or flagrant. If the violation happened more than once, the court can treat it as a crime. The prosecutor will file criminal charges against you for contempt of a court order. This is punishable by jail time, misdemeanor probation, or a fine.
Additionally, violating the restraining order can affect some of your civil rights in various aspects of your life. It can affect your child custody and visitation rights. For example, if you violate the order by moving your children from the court’s jurisdiction during your divorce proceeding, the judge can deny your petition for child custody or visitation. This can affect your relationship with your children, especially if you do not see them as often as you want after the divorce.
One violation of an order or orders in an automatic restraining order can have severe consequences. It helps to speak to a restraining order attorney after receiving the order to understand the order better and how well you can protect your rights during the divorce proceeding. Additionally, ensure you seek a court order before making any decision that could affect your divorce case.
How a Restraining Order Attorney Can Help
Restraining order attorneys are experts in restraining order matters in California. They know all the laws that apply to different types of restraining orders. They also understand better the contents of various restraining orders. Therefore, an attorney is the right person to talk to once you receive a restraining order. They will review the order to help you understand its dos and don’ts, various ways you can violate the order, and possible consequences of a violation. Here are some of the ways a restraining order attorney can help after receiving an automatic restraining order:
Help in Understanding the Contents of the Order
Automatic restraining orders are generally broad, covering various financial actions that both parties in a divorce case should not engage in. It can be tough to understand precisely what action you are prohibited from taking. A restraining order attorney understands all court rules about these kinds of orders and their legal implications. They will ensure you understand the order's provisions using a language you know best. They will also clarify any issues you may have misunderstood regarding the order. This way, you will proceed with the divorce process with a clear understanding of what the court prohibits and allows.
Help in Serving the Order
When you file a divorce petition, the court responds by issuing you the divorce papers and the automatic restraining order. You must serve your partner with the documents within 60 days, with the help of your divorce attorney. Although you can serve your partner with the papers, an attorney will ensure you serve them correctly so the petition will apply to them. You can use a restraining order attorney to ensure that your partner legally receives their copy of the order. If the serving process is not done well, your partner will not be criminally liable if they violate any order provision. An attorney will not allow this to happen to protect your interests in the divorce.
Protecting Your Civil Rights
A restraining order attorney will ensure the order does not violate your civil rights. If you have the right to sell or distribute your assets, they will ensure that the restraining order does not go against these rights. Additionally, your attorney will ensure you retain your parental rights when issuing the automatic restraining order.
Help In Case of a Restraining Order Violation
An attorney will ensure you understand and adhere to all the orders within the automatic restraining order. If you must do something prohibited in order, like traveling with the children or selling an asset, they will advise you on the right processes to follow. They can help you obtain your partner’s consent or a court order.
If you are accused of violating the restraining order, your attorney will offer legal guidance, protect your rights, and help you fight the charges. They will use the best defense strategies to compel the court to dismiss your charges.
For example, they can demonstrate in court that your partner consented to the act or that you had a court order. If so, the court will dismiss any violation charges against you.
Your attorney can also show that your partner is falsely accusing you. This is a good strategy if the violation did not occur in the first place. Your partner can file false accusations against you out of jealousy, for revenge, or to gain an advantage over you in divorce.
Find a Skilled Restraining Order Attorney Near Me
If you are going through a divorce in California, you will receive an automatic restraining order immediately after the court accepts your petition. The order applies equally to you and your partner. It contains orders that protect your financial and parental rights in the divorce. A restraining order attorney is critical in ensuring you understand the order's provisions, how to avoid violating it, and the possible consequences of a violation.
At Goldman Flores Restraining Order Law Firm, we protect your rights and ensure you abide by all the provisions of an automatic restraining order. We will review the order and ensure you understand the dos and don'ts. We can also clarify any unclear orders and advise on what to do if some conditions in the order prevent you from exercising your rights. Call us at 213-341-4087 to learn about automatic restraining orders and our service.
