Automatic Mutual Restraining Orders
- A Synopsis -
This page was last updated on Thursday, July 18, 2013
Automatic Temporary Restraining Orders are mutual orders that become effective immediately upon the service of the summons delivered in a dissolution, legal separation, nullity or paternity action. They remain in effect until a court stops the present action, dismisses the petition, or enters a final judgement. Any person can alter a restraining order, even a judge. This means that the restraining order that the judge gave to you can be very different from the order that the court now has. This is why a person should always keep a signed copy with an embossed stamp of the current order with them. Anyone can forge papers and the absence of the embossment can prove it because your signature must accompany it.
These are the Mutual Automatic Prohibitions or Restraining Orders
1. Remove a child or the children, of the parties, from the state without the prior written consent of the other party or by order of the court. This does not apply to children who are living in another state when the petition is filed. It does not require that a child be returned to California if the child is not living here when the petition was filed.
2. Transfer, encumber, hypothecate, conceal, or dispose of any property. This applies to community, quasi-community, or separate property. However, certain property can be used without the written consent or court order for business purposes or for the necessities of life.
3. Take a loan on the community property or pledge it as security or collateral for a debt.
4. Close a joint checking or savings account and transfer the money into your own separate account.
5. Remove bonds, valuables, and other items from your safe deposit box and give them to a third party to hold for you. Do not keep money in your safe deposit box. The government might assume that you are keeping money in your safe deposit box to avoid paying taxes.
6. Cash, borrow against, cancel, transfer, dispose, or change the beneficiaries of any insurance or other coverage. This includes any insurance held for the benefit of the parties and their child or children for whom support may be ordered.
7. Cash in your life insurance policy and deposit the proceeds into a separate account nor change the beneficiary to your life insurance policy.
8. You may not remove your spouse, or the children, from any the health insurance policy including those for or dental or vision. Nor can you remove your spouse from your automobile insurance policy, even if you are not living together.
9. Each party must notify the other of any proposed extraordinary expenditures at least five business days before incurring those expenses. Moreover, each party must account to the court for all extraordinary expenditures made before, during, and after the restraining orders have become effective.
10. A party is permitted to use their own separate property to pay reasonable attorney fees and costs to retain legal counsel. A party is also permitted to encumber their community property interest in real property (real estate) to secure legal counsel. However, if the party uses community property for that purpose, then that part must provide legal written notice to the other party that a lien will be placed on the property. The reason for this notice is that the lien may affect the other party’s credit score.
11. Each party is not restrained from creating, changing, or revoking a will or trust, or creating an unfunded trust that may affect the other party. The only requirement is that notice is given and the changes are filed before they take effect.
12. Hypothecation is the practice where a borrower pledges collateral to secure a debt but retains ownership of the collateral. However, the creditor controls the collateral and has the right to seize it if the borrower defaults. A simple example is a mortgage agreement where the land and the house are the collateral until the buyer (mortgagor) has paid the mortgage in full. A court may prohibit a person from borrowing money to pay their bills.
Edward Steven Nunes