In the following article, Automatic Temporary Restraining Orders (sometimes referred to as an ATRO) will be discussed. A brief overlook of what this document is and how it will function in your divorce will be examined.
Upon hearing the term restraining order, many people believe that this has something to do with a violent or abusive spouse. This document focuses on the financial and fiduciary portion of a relationship that is headed to dissolution.
What is an ATRO?
ATROs are, in some jurisdictions, included on the summons form that gives notification to the other spouse that divorce action is currently pending. Within other jurisdictions, they are accepted as a given with all filings for divorce.
It is important to note that both parties are bound by the orders. The spouse who petitioned the order is bound by it when filing the petition, and the other spouse is bound once served with the complaint.
What Exactly Does it Do?
Each state has its own rules surrounding an ATRO. In California, for example, if either party to a divorce withdraws a large amount of money without permission from the other party, they are automatically violating orders of the court.
An ATRO contained within the summons is effective immediately upon the service and filing of the summons and petition for divorce, separation, or nullification of a marriage. The orders serve to protect each parties’ interests and rights, especially regarding their property and children. Specifically, the summons indicates that both parties are restrained from the following actions:
- Removing minor children from the state without prior written consent from the other party or court order.
- The transferring, encumbering, concealing, hypothecating, or otherwise disposing of any personal or real property, whether it is separate, quasi-community, or community, without the written consent of the other party – with the exception of the normal courses of business or the necessity of life.
- Canceling, transferring, cashing, borrowing against, disposing of, or changing beneficiaries of an insurance policy or any other coverage, including life, auto, health, and disability that is held for the benefit of the parties or their kids for whom support is provided.
- Creation of a non-probate transfer or the modification of a non-probate transfer in a way that affects the disposition of property that is subjected to the transfer, without the written consent of the other party or court order.
The above orders remain in effect until a final judgment has been passed, the petition is dismissed, or further court order takes place.
Do I Need One?
An ATRO is generally a good idea to have, and is largely automatic (hence, the name). You will want to review how your state handles ATROs with your legal counsel. It is a protection of your assets and will prevent one party from taking what is not rightfully theirs until divorce proceedings are finalized. This helps forensic accountants keep track of your monies and their whereabouts.
Automatic Does Not Mean Automatic
Although ATROs are generally automatic in their function, do not be deceived by seeing the word “Automatic” in the title in terms of their existence. Because this procedure varies by state, only some states will include them in your divorce petition by default. Be sure to check with your state so that, if necessary, your attorney can order an ATRO for you. For example, ATROS are not automatic in the state of South Carolina.
Furthermore, it is critical that you notify the agencies that serve you for all affected policies, portfolios, and accounts. All of these companies will not automatically be told that an ATRO is in effect for you and your spouse. Be sure to place a phone call or fax over the correct documentation to avoid any confusion.
What to Expect
Following is a brief rundown of what one might expect when working with this type of document.
Once you start the divorce process and inform your spouse of it, the orders will automatically go into place in order to prevent changing the status of any of your marital assets, business interests, or insurance policies.
The party that initiates the divorce, or the plaintiff, will be bound immediately when he or she files the orders for the divorce, and the defendant, or opposing party, will be bound upon being served properly. This is a measure that ensures fairness to both parties during the divorce process. It ensures parties are protected and their status will not change for essential services and day to day living.
No large sums of money may be withdrawn from marital bank accounts. No parties, including their children, may be removed from health, dental, or other insurance policies. The same rules apply to life insurance and other policies as well – beneficiaries cannot be changed.
Aside from this, once the divorce is underway, neither spouse is permitted to incur an unreasonable amount of debt or charge a lot of money to credit cards.
For instance, let us assume that you and your spouse have a joint bank account with $30,000 saved up. You or your spouse may not withdraw a huge sum of money from it during the pending status of the divorce proceedings. Changing the status of your financial situation would be very unfair to the other party.
If you and your spouse own a business, they cannot transfer their interests to a friend or relative once they are served. Furthermore, neither you nor your spouse may begin drawing from your pension if you hadn’t been doing that before any of this started. In sum, you cannot do anything you wouldn’t have done had this motion for divorce not been started.
You can do business as usual, however. For example, you can take out money from your marital accounts to cover every day marital bills like you would any other day: gas and other utilities, car payments and mortgage payments, among other common expenses, are okay under an ATRO.
If you had a pension prior to this, you could continue drawing from it if you had already been doing so. You can also use your marital funds to pay your attorneys and other legal counsel. The general rule is to use good judgement and avoid going overboard on expenses. This will prevent your spouse from alleging you of dissipating marital assets.
How Are ATROs Enforced?
Family courts enforce ATROs. Some family courts offer solutions that are compliant with cases involving a breach of a fiduciary duty. Solutions and remedies may be to order lost profits, the title to a particular asset, or restitution as a means to assist the innocent party.
Lawyer fees and sanctions may be imposed against the party that committed the wrongdoing. Furthermore, each party can ask the court to revoke, expand, or even modify a part of the ATRO. If any sort of modification is necessary, your attorney will discuss it with you and consider if the court should be asked to step in and make the necessary changes.
What Is the Purpose?
Ultimately, ATROs are for the protection and well-being of all parties involved. The ATROs lay down ground rules for the duration of the divorce litigation. They prevent any malicious or preemptive behaviors or actions from one party against the other.
An ATRO sets a precedence that marital bank accounts and insurance policies will remain the same from the moment they are filed all the way until matters are resolved via settlement or in court. Essentially, you are making sure you can keep assets protected until it becomes time to divide them fairly and evenly. An ATRO also ensures the health and well-being of members who may be relying on health insurance for essential treatments.
What Are Not Violations of an ATRO?
There are some things you absolutely can do while under an ATRO. For example, going about your daily business is perfectly fine, as previously mentioned. This includes using your money to pay for attorney fees and other costs associated with divorce. You also can secure yourself legal counsel via the use of community real property. This is commonly referred to as a FARPL, or Family Law Attorney Real Property Lien. Notice must be provided, however.
You can also sever a joint tenancy or eliminate a right of survivorship to property. You must provide notice to your spouse before the change takes effect. It is considered a good idea to sever any joint tenancy, because if property is held by both parties within joint tenancy and you die before the divorce is finalized, your spouse will then inherit the home.
You can also modify your Will while under the rule of an ATRO.
Lastly, you are permitted to buy and sell property. It will be examined and then determined by the court if you have a legitimate business or a hobby. The court will determine if the purchase was something your business normally would have done, or if it was something else.
If you have real estate, for example, you will likely be permitted to sell a holding. The same holds true for day traders on the stock market. In other words, if it is something you do as part of business dealings, it likely will not cause a violation of the ATRO.
The ATRO will essentially freeze all of your assets. This is good, because in some cases, one family member controls all financial happenings within a household. This ensures a fair case for all sides.
What if My Spouse Violates the ATRO?
While an ATRO is meant to be followed closely and taken seriously, there will be times when its terms will be broken. This is wrong and also a criminal offense. The court will hold the offending spouse in violation of an automatic temporary restraining order in contempt.
If an ATRO infraction happens to you, it is important you report it right away. This violation will require criminal charges and can have an effect upon the divorce proceedings, especially if your spouse has been hiding, destroying, or altering assets to make them appear as though they have less net worth.
If one party files a complaint for a violation of an ATRO, the divorce case will be halted temporarily until the courts settle the criminal case. Remember, violation of an ATRO will affect the outcome of the case as a whole. Because of this, it is important that the criminal case be completed before the divorce case continues onward.
It is very critical to maintain financial status quo prior to divorce. This will ensure an effective case and make for an easier process. Financial retaliation affects people in a few different ways. First and foremost, it leaves one party without the critical resources necessary to survive. Second, it puts the veracity of a divorce case at risk.
The reason ATROs are put into place is to protect financial assets and keep them accountable as they are examined at the beginning of a divorce case or settlement process. Therefore, violation of this order represents much more than revenge of a financial variety; it is just like fraud.
Any ATRO violations or help understanding what will happen during such an event is best discussed with your legal counsel.
All in all, an ATRO is a document meant to level the playing field in a relationship that is heading to dissolution. It is put into place so spouses on either side begin the process with the same amounts of money, coverage, and assets they had when the divorce petition was first served, ensuring a fair process for all involved.
Sanctions are swift and serious in the event of a violation, so the order should be taken seriously. It will also prevent any alterations of life-affecting policies, such as a health insurance policy that provides the needed care. Consult with your legal counsel for the best advice pertaining to your situation.