Automatic Restraining Orders
When a petition is served in California, automatic temporary restraining orders (usually referred to as ATROs) are automatically effective. The automatic restraining orders prevent either party from destroying, hypothecating, gifting, or changing any property owned by either party. The rules are designed to preserve the property of the parties until further order of the court.
When one party is knowledgeable about the ATROs before the divorce petition is served or filed, that party may try to circumvent the ATROs by waiting to file the dissolution so that they can transfer property before the ATROs apply. This tactic may be effective in some situations but could be detrimental in other circumstances. For instance, if one party pays for the car insurance and that party stops the insurance before the dissolution is filed or served, then each party will have to obtain separate insurance. However, if one party gets in an accident without car insurance, then, both spouses’ property can be exposed to risk. Individuals may also amend their trust so that the soon to be ex-spouse is no longer the trustee of the assets or in the alternative, revoking the trust in its entirety and taking the assets out of the trust. Once the petition is filed, no changes are allowed to a trust.
A maneuver to transfer assets before a divorce is started can backfire. If one party gifts a piece of property to a third person, sells it, or tries to hide an asset, the court can order that party to reimburse the community for the asset that is gone. In addition, during a divorce, under penalty of perjury, both parties are required to fully disclose all assets, identify recent gifts to third parties, and submit copies of bank statements. An attempt to hide an asset can be difficult if bank accounts or documents are available to prove its existence.
Usually a unilateral transfer in property does not circumvent the system. One spouse cannot unilaterally transfer property without the consent of the other spouse. The value of the property or the property itself may be transferred back to the community. Even though the property is given away, the non-consenting spouse’s attorney can request that the community be reimbursed for the value of the property which was transferred. In the end, the circumventing spouse has to pay the non-consenting spouse half of all that was transferred.
Once a petition is filed, property can be transferred, but only by written agreement of both parties or a court order. Without an agreement or order, the parties will have to explain to the judge why the property was transferred in violation of the automatic restraining orders.