What Divorcing Women Need to Know About Automatic Temporary Restraining Orders

Far from anything related to violence, an Automatic Temporary Restraining Order is actually considered a legal “nicety”

Jeffrey A. Landers • Divorce Financial Strategist™ and the founder of Bedrock Divorce Advisors, LLC

Just mention the phrase “restraining order,” and the mental alarm bells start ringing. Those two words immediately conjure up images of emergency decrees taken to protect one person from another’s dangerously aggressive, or even violent, behavior, and for virtually everyone, just the idea of needing or being bound by one is quite disturbing.

However, in the world of legal divorce proceedings, there is something called an “Automatic Temporary Restraining Order” (or ATRO, for short) –and it means something else entirely.

Far from anything related to violence, an ATRO is actually considered a legal “nicety.” It is a court filing used to establish the rules you and your husband will follow during the divorce process (or legal separation, nullity or paternity action) with regard to your assets, insurance policies, designations of beneficiaries on wills and other legal documents, etc.

Essentially, an ATRO serves to “freeze” a couple’s financial status quo, preventing either party from making changes once a divorce action has been initiated . . . and until a settlement has been reached.

In addition to the financial accountability and stability an ATRO affords, it also helps ensure a measure of respect between divorcing spouses, perhaps alleviating some of the pervasive mistrust and anxiety that often colors so much of the divorce process. Once you’ve filed an ATRO with the Courts, you will be better able to focus on immediate issues being negotiated with your spouse, knowing that changes can’t be made to your financial situation behind the scenes and without your consent.

So, let’s discuss ATROs and their uses in more detail. Here are some of the key things I make sure my clients understand about them:

·      An ATRO is a court order that disallows either spouse from altering certain aspects of their financial situation. An ATRO may be an integral part of the divorce action (in some states, it is right on the back of the actual divorce petition), or it may be a separate filing. In any case, it is a mutual court order that, generally, prohibits either spouse from such actions as:

o   selling, transferring or borrowing against property

o   borrowing against or selling insurance held for the other spouse

o   modifying designated beneficiaries of insurance policies, retirement accounts, wills, etc.

o   changing bank accounts

o   destroying or hiding assets

Since an ATRO prohibits any of these changes (and certain large expenditures, as well), the marital financial picture is effectively “frozen” until a fair settlement can be reached.

·      Despite the word “automatic” in its title, an ATRO may not automatically be part of your divorce petition. As with many aspects of divorce (i.e. division of debt, definition of separate and marital property), laws regarding filing and execution of ATROs vary from state to state (see more about this below). In some states, such as California, ATROs are automatically part of every divorce petition. However, if you live in a state that does not require an ATRO, such as New Jersey, your divorce attorney will have to request one from the Courts.

It is also important to know that your banks, brokerage firms and insurance companies will not “automatically” be notified that an ATRO has been filed –even if it directly affects your accounts and policies with them. It is your responsibility, not the Courts’, to let these companies know about the ATRO. Please don’t neglect this important step!

  • There are serious consequences to violating an ATRO. An ATRO is a legal document designed to protect both spouses from changes made to their financial situation without their consent, or their knowledge. If either party violates the terms of the ATRO, serious legal consequences, including financial restitution and significant fines, can follow. If, for example, you discover that during the divorce process your husband sold a family vacation home without consulting you, you could be entitled to restitution in the amount of half the value of the property sold, not just half of its sale price.

Of course, that means if you’re in doubt as to whether a planned bank account withdrawal or other financial action constitutes a violation of your ATRO, you need to take care to do the right thing. Make sure you have a qualified divorce team in your corner to help you navigate your ATRO’s temporary restrictions while your settlement is negotiated.

·      An ATRO can be altered. If both spouses agree to it, the Courts can issue a modification of the terms of the ATRO as your divorce action proceeds.

·      Some expenses are not subject to an ATRO. Although ATROS prohibit many expenditures in order to “freeze” your current financial picture while your divorce is underway, you are still allowed to spend money in your “usual course of business.” However, the Courts get to decide what “usual” and “business” mean in the context of your marriage and what expenses fall in this category.  The Courts have been known to exercise considerable discretion in this area.

You are also allowed to use your assets to retain legal counsel. In general, paying your attorneys’ fees is not considered a violation of your ATRO.

As always, it’s a good idea to check with your divorce attorney regarding the details of your particular case.

·      ATRO requirements vary from state to state. As mentioned above, not all states require an ATRO as part of a divorce filing. New Jersey and South Carolina, for example, do not, while California and Minnesota make an ATRO part of every divorce petition. Further complicating things, states that do require ATROs don’t all implement them the same way. ATROs are a relatively recent development in New York State, where the Notice of Automatic Orders, which prohibits either spouse from hiding or liquidating assets once a divorce action has begun, was added to Domestic Relations Law in 2009.

It’s important to note that having an ATRO as part of the divorce filing is particularly helpful when marital assets have been largely under control of one spouse. The ATRO is generally thought to be a benefit to the less-monied spouse (who is typically, but not always, the wife).  An ATRO provides an immediate level of protection against, say, your husband selling the family sailboat to a friend for an artificially low price to keep it out of the divorce settlement, then buying it back again after the divorce is final. Without an ATRO in place, it would fall to the aggrieved spouse to spend time and money to obtain an injunction from the Courts against such a sale.

Even under less contentious circumstances, an ATRO is tremendously valuable for the level of comfort it provides, allowing you to rest assured, knowing that your financial status quo will remain in tact while your divorce settlement is thoughtfully and properly negotiated. As I’ve seen countless times, that can mean some welcome peace-of-mind at a time when it otherwise seems in short supply.

Photo courtesy Luis Santos/Shutterstock

Jeffrey A. Landers, CDFA™ is a Divorce Financial Strategist™ and the founder of Bedrock Divorce Advisors, LLC (http://www.BedrockDivorce.com) a firm that exclusively advises affluent women throughout the United States before, during and after divorce.  He assists women and their divorce attorneys with deciding on the most advantageous way to divide marital assets and enable them to negotiate more favorable settlements, especially when there are complicated financial and tax issues. He can be reached at Landers@BedrockDivorce.com.

Jeff is the author of the new book,Divorce: Think Financially, Not EmotionallyâWhat Women Need To Know About Securing Their Financial Future Before, During, And After Divorce, which provides women going through the crisis of divorce with the tools they need to secure their financial future. What’s more, he is donating 50% of all profits to the Bedrock Divorce Fund for Abused Women, Inc., a 501(c)(3) nonprofit charity whose mission is to help female victims of domestic abuse and the organizations that support them.

Divorce: Think Financially, Not Emotionallyâis available at Amazon.com and bedrockdivorce.com. Itcan also be downloaded on Kindle and Nook.

All articles/blog posts are for informational purposes only, and do not constitute legal advice. If you require legal advice, retain a lawyer licensed in your jurisdiction. The opinions expressed are solely those of the author, who is not an attorney.

Follow Jeffrey A. Landers on Twitter: http://www.twitter.com/Bedrock_Divorce

First Published Thu, 2012-11-01 15:01

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