Wednesday, April 22, 2009

ATROS - Automatic Temporary Restraining Orders

Donald F. Conviser, Certified Family Law Specialist, owner of Warner Center Law Offices in Woodland Hills, California, [a Los Angeles Divorce and Family Law attorney representing Divorce clients throughout Los Angeles county and Ventura county for over 35 years, 818-880-8990] provides you another, in what has become a daily series of Blogs.

A prospective client called me yesterday for advice regarding a dilemma she is in: She and her husband own some inoperable commercial vehicles, registered only in her name, which are in her husband's possession at locations which he refuses to divulge to her.

She is separated from her husband, has filed and served a divorce case on him, and received domestic violence restraining orders from the court against her husband who has physically abused her and threatened her life. Her husband is facing criminal prosecution for his abuse of her, and refuses to cooperate with her.

Her dilemma: how can she avoid liability for storage fees for the vehicles, or worse, how can she get insulated from liability for injuries or damages caused in any way by the vehicles?

Her inquiry and concern are appropriate. For all the time she remains the registered owner of the commercial vehicles, she is liable for their storage costs as well as injuries or damages caused by the commercial vehicles. There is no magic wand that absolves her of responsibility during the period of her ownership. She needs an expedient solution to her dilemma.

A practical problem that she faces is that without knowing where the vehicles are, she lacks the ability to have them seized and moved.

Dare she even attempt to contact her domestic abuser husband? Could that result in increased violence or threats? He refused to cooperate with her even before she sought the domestic violence restraining orders? Due to those restraining orders, he would risk contempt-of-court charges if he contacts her. He may default in the divorce case and ignore formal discovery [such as Special Interrogatories asking where the commercial vehicles are, and Inspection Demands seeking production of documents relating to the towing or storage of the vehicles].

It would be wise for her to hire a private investigator to seek information leading to the location of the vehicles instead of expecting the Wicked Dragon to transform into the Prince of Truth.

A simple solution would appear to be to locate the vehicles and sell them to a junk yard BUT a legal impediment exists regarding sale or disposal of the vehicles: ATROs - Automatic Temporary Restraining Orders, which are on the back of the Summons in every California divorce case.

Those ATROS are effective against the filing party (the Petitioner) upon signing the Divorce Petition, and effective upon the served party (the Respondent) upon service.

The ATROS effective in Divorce Cases restrain the parties from:

1. Removing minor children of the parties from California without the prior written consent of the other party or prior written order of the Court;

2. 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/children;

3. 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

4. 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. Before revocation of a nonprobate transfer can take affect or a right of survivorship to property can be eliminated, notice of the change must be filed and served on the other party.

The ATROs advise the parties: You must notify each other of any proposed extraordinary expenditures at least five business days prior to incurring these extraordinary expenditures and account to the court for all extraordinary expenditures made after these restraining orders are effective. However, you may use community property, quasi-community property, or your own separate property to pay an attorney to help you or to pay Court costs.

[The lawyers' lobby or the plethora of attorneys in the state legislature must have been responsible for the last sentence!]

The 3rd ATRO noted above presents a problem to my prospective client. Even if she locates and takes possession of the commercial vehicles, she can't sell or dispose of them with impunity absent written consent of her husband or a Court Order permitting her to do so.

The violation of a restraining order is a contempt of court, which comprises four (4) elements: 1) A valid order; 2) knowlege of the order; 3) ability to comply with the order; and 4) willful noncompliance. Contempt proceedings are 'quasi-criminal' proceedings, with fines and jail time as potential consequence. [I'll Blog about Contempt proceedings in a new blog, time permitting].

As the Petitioner in the divorce case, she is charged with knowledge of the ATRO which automatically became valid upon her signing the Petition in her divorce case. She has the ability to comply, and disposing of the commercial vehicles without her husband's written consent or a court order would constitute willful noncompliance .

My advice is:

1) Hire a private investigator to locate the commercial vehicles;

2) Find somebody to tow or move the vehicles to a secure location of her choice;

3) Seek and locate either a prospective purchaser for the commercial vehicles, or if she can't find any prospective purchaser, a junk yard to take the commercial vehicles once she receives either written permission of her husband or a Court Order; and

4) If her husband does not consent in writing to her disposal or sale of the commercial vehicles, have a competent Family Law Attorney take over her representation and file an Ex Parte Application, based on a Declaration setting forth the facts, to seek an Order of the Court permitting her to dispose of the commercial vehicles in the manner she seeks, with a fallback in the Ex Parte Application: an order shortening time to set and serve a Notice of Motion or Order to Show Cause seeking permission to so dispose of the commercial vehicles.

For her to just sell or otherwise dispose of the commercial vehicles would expose her to liability and prosecution for Contempt of Court for violation of the ATROs, as well as liability to her husband for 1/2 of the fair market value of the commercial vehicles.

I enjoy the challenges people present to me as a Los Angeles divorce lawyer, which create the opportunity for me to brainstorm to arrive at practical and legal solutions. Helping people who are suffering the stress of relationships that didn't work out is the job that I chose for myself, but I don't really see it as a "job". I see it as an opportunity to assist, to educate, to contribute, to exercise my grey matter, to put out fires, to solve problems.

Posted by Los Angeles Divorce Lawyer Donald F. Conviser, of Warner Center Law Offices, a Certified Family Law Specialist in Woodland Hills, California (818) 880-8990, with over 35 years of experience representing and serving clients in all aspects of Family Law, including Restraining Orders, Motions, Order to Show Cause matters, Ex Parte applications, Divorce, Mastering Divorce, Premarital Agreements (Prenuptial Agreements), Child Custody, Child Visitation, Child Support, Spousal Support, Property Division, Nonmarital Dissolution, Paternity [Uniform Parentage Act cases - for either the mother or the alleged father], Stepparent adoption, and creative problem-solving.

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