Automatic Temporary Restraining Orders or ATROs: Positive or Negative

Posted May 22, 2015 in Family Law by Susan Dent.

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May 22, 2015
Automatic Temporary Restraining Orders or ATROs: Positive or Negative
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While there are marriages that end on good terms and amicably, this is a rarity in today’s world. The “ideal” divorce is hard to find and in reality, most marriages do not dissolve so easily, and from the moment a spouse is served, their emotions can get the best of them. They may act out- draining community accounts, cancelling joint benefits, or even threatening to withhold or leave with the parties’ children. This is when Automatic Temporary Restraining Orders, or “ATROs” come into play. Unlike a traditional restraining order which protects against other people, ATROs serve to protect the status quo of the marriage.

Specifically, California Family Code § 2040(a), which outlines the contents of ATROs, lists the following that both parties are restrained from exploiting during the dissolution process:

  • removing the minor child or children of the parties, if any, from the state without the prior written consent of the other party or an order of the court;
  • transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life, and requiring each party to notify the other party of any proposed extraordinary expenditures at least give business days before incurring those expenditures and to account  to the court for all extraordinary expenditures made after service of the summons on that party;
  • cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability, held for the benefit of the parties and their child or children for whom support may be ordered;
  • creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer, without the written consent of the other party or an order of the court. [1]

As one of the obligations when filing for dissolution of marriage, the Petitioner must file and serve a Summons and a Petition to put the other party on notice that they are being divorced. This Summons, Form FL-100[2] in California, lists the ATROs or the “Standard Family Law Restraining Orders” in their entirety. The ATROs binds both parties and becomes effective immediately upon the service of the Summons.

ATROs impact to main issues in a divorce proceeding: travel with children and finances. ATROs temporary “freezes” both parties financial assets and forbids travel with children outside of the state of California without the prior written consent of the other party, or a court order.

An interesting case involving the effect of ATROs in the marital dissolution proceedings is of John McTiernan, director of big Hollywood films such as Bruce Willis’s Die Hard and his ex-wife, Donna Dubrow. [3] During the course of their dissolution proceedings, McTiernan sold certain community property stocks, which he partially used to pay community expenses. However, ATROs forbids the transfer or disposing of any property, “whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life.” The court found that although he did not sell these stocks in ill will or maliciously, it was nevertheless a violation of ATROs because he could have consulted his wife or obtained court approval. Since he did neither, the court awarded Dubrow with restitution damages resulting from the sale of the stocks.

Essentially, ATROs protect both spouses and any disruptions to their “financial status, home life, and relationships with children while in the process of dissolving their marriage.”[4] If either party were worried about either finances or their relationships with their children, these items should be prioritized during the process. The concerned party may want to immediately file for temporary custody orders or even reach out to the other party about accounts and assets. In an already upsetting and tense situation, ATROs helps to safeguard a degree of respect between the divorcing couple and may even relieve some of anxiety and mistrust that so often results in the marriage dissolution process. For these reasons, ATROs are an invaluable tool during divorce proceedings. [5]

If you are considering filing for divorce at any time of the year and have questions regarding ATROs, the Certified Family Law Specialists at Lonich & Patton have decades of experience handling complex family law matters.  Please contact the Certified Family Law Specialists at Lonich & Patton for further information.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.



[1] Cal. Fam. Code § 2040(a) (West).

[2] http://www.courts.ca.gov/documents/fl110.pdf

[3] In re the Marriage of John McTiernan and Donna Dubrow (2005) 133 Cal. App. 4th 1090.

[4] Dana Warstler, A History of the Automatics TROS in Family Code 2040(A), 11 J. Contemp. Legal Issues 191, 191 (2000).

[5] http://www.more.com/relationships/marriage-divorce/what-divorcing-women-need-know-about-automatic-temporary-restraining-?page=2

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Billionaire’s divorcing wife wants at least $1 million per month

Posted March 6, 2015 in Family Law by Lonich and Patton.

How difficult would it be to spend $1 million dollars per month? In divorce proceedings that initiated last July, the wife of hedge fund manager Ken Griffin says that is precisely the amount that she requires to maintain her standard of living.

What are some of these expenses? They include:

-          $2,000 a month for stationary

-          $6,800 a month for groceries

-          $7,200 a month for restaurant meals

-          $8,000 a month for gifts

-          $60,000 a month for an office and professional staff

-          $160,000 a month for hotels

-          $300,000 a month for a private jet

She makes this claim despite the presence of a prenuptial agreement that she signed in 2004. Ms. Dias-Griffin is seeking to have the prenuptial agreement nullified on the basis of duress and coercion. Mr. Griffin argues that she was fully aware of what she signed. The terms of the prenup included that she received $25 million upon signing the document, $1 million every year thereafter and Ms. Griffin had the advice of independent counsel – namely three prominent law firms – when signing.

In papers filed in Illinois state court, Mr. Griffin claims he already paid Ms. Dias-Griffin some $37 million in payments under the premarital agreement, in addition to giving her a 50% stake in the couple’s $11 million Chicago home. Ms. Dias-Griffin claims that this would only leave her with 1% of Mr. Griffin’s net worth and should be voided since she signed it under duress.

“Anne failed in her initial effort to obtain these things from Ken in the name of maintaining the ‘status quo,’” the filing reads, according to CNBC. “Now she claims that these same expenses are in fact ‘child support.’”

If you don’t know who he is, Ken Griffin is one of the world’s wealthiest men. As the founder and CEO of Citadel, a global investment firm, Forbes estimated his net worth at a value of $5.5 billion in 2014.  Mr. Griffin married Anne Dias-Griffin in July of 2004. Ms. Griffin is also a founder of the Chicago-based hedge fund firm Aragon Global Management. Together, they have three children each less than 10 years old.

Typical Components of a Prenuptial Agreement

A prenuptial agreement can be a powerful tool in limiting property rights and alimony. A properly drafted prenup may be impossible to set aside. While the requirements for properly drafted prenuptial agreements vary from state to state, some of the general requirements in California for a valid prenuptial agreement under the California Premarital Agreement Act are:

-          They must be executed voluntarily;

-          Each party had independent legal counsel (or properly waived that right);

-          Had legal capacity to enter into the agreement;

-          There was no fraud, duress, or undue influence;

-          A seven day waiting period between being presented with the agreement and signing it;

-          Any other factor a court deems as relevant.

These are not all of the requirements, and each of the above mentioned requirements have elements that must be met in-and-of themselves. The Certified Family Law Specialists at Lonich & Patton have decades of experience handling complex family law matters.  If you are interested in learning more about prenuptial or post-nuptial agreements, please contact the Certified Family Law Specialists at Lonich & Patton for further information.

Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

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Divorce Month is Half Over

Posted January 16, 2015 in Family Law by Lonich and Patton.

This coming Monday, January 19, 2015, has been marked as “blue Monday” or the unhappiest day of the year. Experts predict the following factors contribute to blue Monday: weather conditions, debt level, time since the holidays, time since failing our new year’s resolutions, low motivational levels, and the feeling of a need to take action. On a similar note, every January also experiences a noticeable increase in the number of individuals seeking divorce advice and ultimately filing for divorce. The president of the American Academy of Matrimonial Lawyers says the number of divorce filings is one-third more than normal, starting in January and continuing until early March. Like blue Monday, this trend is rather melancholy but makes sense for a couple of reasons.

First, an unhappy spouse may want to wait until the new year to file for divorce in order to avoid the associated social stigma. Most spouses probably do not want to explain why their spouse was served with divorce papers right before the holidays, a time traditionally for family. Additionally, waiting until January avoids “ruining” Christmas for the children and keeps the status quo until the children return to school.

Further, a new year comes with new year’s resolutions, most of which are aimed at achieving personal happiness. If a spouse is in an unhappy marriage, then a divorce may be an appealing option.

Lastly, it may be logistically easier to wait to file until the holidays are over. This may streamline the divorce process, making it more likely that the divorce will be finalized before the end of the year. Courts often experience backlog during the holiday season, as spouses rush to finalize their divorce before January for tax purposes (they want to file as single for the new year).

Whatever the reason, if you are in an unhappy marriage right now, you are probably not alone. On a positive note, many spouses have completely different and new lives in front of them after divorce. Hence, January is also the busiest time of the year for online dating websites, which experience a similar 38% increase in registrations from December through February. According to a study published in the National Academy of Sciences, around one-third of American marriages now begin online and are less likely to end in divorce than those who did not meet online.

If you are considering filing for divorce at any time of the year, the Certified Family Law Specialists at Lonich & Patton have decades of experience handling complex family law matters.  Please contact the Certified Family Law Specialists at Lonich & Patton for further information.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

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Your Holiday Child Custody Visitation Schedule

Posted December 12, 2014 in Family Law by Lonich and Patton.

December is a holy time of the year, encompassing the celebration of many religious holidays and spiritually significant days. December may also, unfortunately, be the time of year that religious differences arise between ex-spouses, which may not have been present during marriage. When parents have divergent religious beliefs, it may be difficult to come to a visitation agreement during the holidays.

The general rule is that the custodial parent has the authority to make decisions relating to their child’s religious upbringing. For example, a Jewish father who is the custodial parent has the right to raise his child as Jewish and to celebrate any related religious holidays, such as Chanukah, with the child. At divorce, this may raise some concerns if the parents do not agree on what religion to raise their child. Courts will not prohibit the noncustodial parent from discussing religion with the child or from involving the child in his or her religious activities, in the absence of a showing that the child will be harmed.

Further, courts are unwilling to get involved in religious disputes between parents because of the potential for interference with the First Amendment’s guarantee that the government shall not prohibit the free exercise of religion. Thus, courts will never make any ruling based solely on religion. Courts will, however, uphold child custody visitation agreements between the parents that concern religious issues.

If religious differences may become an issue during or after divorce, it is important that you and your ex-spouse discuss the importance of all religious holidays and how they will be incorporated into your visitation schedule. Parents will usually alternate custody between holidays each year, but this is not always the case if one parent values certain holidays more than others, or if parents of different faiths want to celebrate holidays that fall on the same day. Whatever you and your spouse agree on with regards to the custody schedule, it should be determined well in advance and with the child’s best interests in mind. Additionally, any custody agreement should detail exactly what will happen in these situations.

The Certified Family Law Specialists at Lonich & Patton have decades of experience handling complex family law matters.  If you have any questions about your child custody visitation schedule, please contact the Certified Family Law Specialists at Lonich & Patton for further information.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

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Surviving The Holidays During A Divorce

Posted December 3, 2014 in Family Law by Michael Lonich.

The holidays are a time for family, friends, and togetherness. For the recently divorced or those in the process of a divorce, the holidays can be a very sad, confusing, and lonely time; especially for those couples with children. Lonich & Patton, LLP have put together three tips to get you through the holidays this year: plan ahead, socialize, and create new traditions.

Plan Ahead

The first and most important step to ensuring you survive the holidays is planning ahead. This includes planning out where your children will spend their holidays and with whom. Depending on your custody plan, there are inevitably going to be holes in your schedule and during those time, loneliness may be unavoidable. One way to avoid being lonely during these times is to get activities on the calendar.  If your children will be with your former spouse this year, plan activities with friends and family to keep you busy. While keeping yourself busy may be essential to surviving the holidays, it is also essential to leave some time for rest and reflection, so try not to over commit yourself.

Socialize

The more the merrier. It is common knowledge that the more people you surround yourself with, the better your mood will be. Just because your children are with your former spouse, does not mean you have to spend the holidays home alone. This holiday season, be sure to interact with others, whether it be with family or friends. Socializing will help you avoid feelings of sadness, loneliness, and depression. If you used to spend your holidays with your in-laws, find somewhere else to go this year. Do not be afraid to crash a holiday party or two. And remember, it is normal to feel out of place and uncomfortable, but the more you socialize, the better you will feel.

Create New Traditions

                Divorce means letting go. This includes letting go of certain family traditions. Now that you are divorced, your holiday traditions are bound to change. This is your opportunity to keep the traditions you enjoy, get rid of those you do not, and create new and better traditions with your children. Take this time to try something you have always wanted to do, were too scared to do, or something your former would never let you and the children do. Also, if your children are spending this holiday with your former spouse, consider celebrating the same holiday with your children on an alternate day.

These are just some of the many tips available to survive the holidays during your divorce. The Certified Family Law Specialists at Lonich & Patton have decades of experience handling complex family law matters.  If you are interested in learning more about scheduling where your children will spend the holidays, please contact Lonich & Patton for further information.  Keep in mind that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

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