Divorce – Automatic Temporary Restraining Orders

Divorce – Automatic Temporary Restraining Orders

Protection During Divorce, and Automatic Temporary Restraining Orders

Are you thinking of filing for divorce in Monterey County? Are you worried about the immediate results of filing, and want to make sure you’re protected? Before you file, you should know about the Automatic Temporary Restraining Orders. These are rules that you have to obey from the time you file the papers until your divorce is final.

What are Automatic Temporary Restraining Orders?

California Family Code section 2040 talks about Automatic Temporary Restraining Orders. A restraining order is a legal instruction that you do, or don’t do, something. The orders are in place to protect both spouses, and kids, during a divorce. If you file for divorce, you agree to these orders, including:

1. not transporting your kids out of state without permission;
2. not spending money out of the usual,
3. not changing insurance policies, and
4. not doing certain “nonprobate” transfers.

The restraining orders also apply to a spouse served with divorce papers.

Let’s go through the orders, one by one:

• No taking kids out of California.

  This order is meant to keep parents from taking kids, keeping the other parent from seeing them. However, it can also affect situations that may, at first glance, seem less serious. Are you planning to stay with your parents in Reno until you can find your own place? Planning on taking your kids on a vacation to Disney World in Orlando? Think twice before you file your divorce, because you cannot take the children out of state without the other parent’s permission during the divorce (which could last years). If the other parent won’t agree, you’ll need a court order before you can travel.

• No big spending, other than normal expenses.

  The parties can’t spend out of the ordinary, even if the money is from “separate property.” The reason is to prevent either spouse from emptying the bank accounts. Necessities of life (food, housing, clothing, transportation, etc.) are fine, but have to be in the “usual course of business.” If you drive a Civic when papers are filed, buying a Mercedes after filing would not be in the “usual course of business.” Neither would draining any joint account.

  Either party can pay their attorney fees.

• No changing insurance policies.

  Does your life insurance list your spouse as the person who gets the benefits? What about medical coverage– do your kids and spouse get insurance from your employer’s policy? Does your car insurance cover your spouse? Once you file for divorce, you can’t make changes to the beneficiaries, and you can’t take your spouse or kids off of any policies.

• No changing estate plans.

  This order means, if you “granted” your spouse any part of your estate (whether through a will, trust, etc.) before filing, you can’t change the plan. So, if you die during the divorce, your spouse will still inherit from you. There are some exceptions to this order, and ways to avoid the result. Contact a family law attorney to make sure that any changes you make are legal.

For more information about Automatic Temporary Restraining Orders, and how to protect yourself, your children, and your money, contact Cornwall Family Law.