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View Full Version : CA Divorce, Automatic Restraining Order ATROS , Gun Rights


RayG
07-22-2011, 6:48 AM
Hello All
I have just petitioned my wife for divorce. Along with serving divorce papers in CA, comes something called ATROS , which applies to both parties. This is an automatic "restraining order" , although not intended to be construed as one issued for threat of violence or harassment. Rather it is intended to prevent either party from disposing or reassigning assets, insurance, moving kids away from home etc.
I would hope that this does not prevent either party from owning, or purchasing firearms during the ATROS period. If so, does one need to document this when applying for a new firearm?
It would not make sense automatically rendering firearm collections illegal and requiring disposal for anyone going through a divorce , but living in CA I assume nothing :)
Many thanks for your comments!

Big Jake
07-22-2011, 7:02 AM
I went through a divorce last year. This kind of RO IS NOT the kind that will take away your firearm rights. This is a standard thing, which prevents either party from selling assets that are community property.

I was never informed that my firearm rights were at risk and my ex-wife's attorney knew I owned guns. Never a problem so don't sweat it. That said, things in a divorce can go South quickly so don't say/do anything that your soon to be ex can construe as a threat as she can take you to court and get a TRO, which will cause you to lose your firearm rights. If you have a concern that she may do this a good option is to DROS all of your guns to a trusted friend or family member NOW. This way if she does try anything you can legally say you don't own firearms and would not lose them. Once the dust settles on your divorce you can have them DROSed back to you. May cost you a little in fees, but well worth it IMO. If a TRO was issued against you then you would only have 24 hours to dispose of your guns. And yes, LEO's will come to your door to take your guns OR to ask for proof of sale to another person or FFL!

Good luck!

RayG
07-22-2011, 7:11 AM
Many Thanks Big Jake,
This is a civilized divorce and there is no animosity, I have no wish to conceal anything from her. My collection is mainly lower value C&R stuff. I was concerned that I would need to state the ATROS ( as it seems to be technically a restraining order) when applying for a new long gun , as I have my heart set on an old single shot .22 trainer. ( The DOJ application mentions something about restraining orders)

Big Jake
07-22-2011, 7:20 AM
Many Thanks Big Jake,
This is a civilized divorce and there is no animosity, I have no wish to conceal anything from her. My collection is mainly lower value C&R stuff. I was concerned that I would need to state the ATROS ( as it seems to be technically a restraining order) when applying for a new long gun , as I have my heart set on an old single shot .22 trainer. ( The DOJ application mentions something about restraining orders)

Again, this RO will not make you a "prohibited person". My divorce was also friendly, however, things can get rough. My ex-wife's POS attorney encouraged her to get a TRO so that she would have more leverage against me. He apparently advised many of his female clients to do this I later found out! :mad: She refused as there was no cause for it. Understand that lawyers in divorce cases do not look out for the best interest of their clients. They look out for their own interests by getting people to fight as this is how they rack up billable time.

A friend of mine had his b**** ex-wife do this and get a TRO against him for leverage even tough there was NEVER a cause for it. In his case, however, he is not a firearm owner so there was no issue in that regard. All a women has to do is go into court and say she is scared of her husband and the judge will issue the TRO as a precaution even if there is no good cause for it.

My advice to you and your soon to be ex-wife is to handle as much of your divorce as you can by yourselves without an attorney.

Again, good luck to you! :)

jeep7081
07-22-2011, 7:29 AM
A women can get a TRO w/out a "CLETS" order. W/out a clets order, you can purchase a firearm, and the women still can keep you away from her until things cool down during the divorce.

Big Jake
07-22-2011, 7:41 AM
A women can get a TRO w/out a "CLETS" order. W/out a clets order, you can purchase a firearm, and the women still can keep you away from her until things cool down during the divorce.

True, however, this type of RO is rarely issued. Most TRO that are issued have the CLETS order!

socal2310
07-22-2011, 7:42 AM
Many Thanks Big Jake,
This is a civilized divorce and there is no animosity, I have no wish to conceal anything from her. My collection is mainly lower value C&R stuff. I was concerned that I would need to state the ATROS ( as it seems to be technically a restraining order) when applying for a new long gun , as I have my heart set on an old single shot .22 trainer. ( The DOJ application mentions something about restraining orders)

I would recommend off-site storage instead of DROSing the firearms as a sale or transfer could be construed as an attempt to defraud your spouse. This was covered in another recent divorce thread (a lot of those recently, must be the weather).

Ryan

RandyD
07-22-2011, 8:13 AM
I am a family law attorney with 18 years of experience. The restraining orders that the OP is referring to are listed on the back of a Family Law Summons, and they are titled, "STANDARD FAMILY LAW RESTRAINING ORDERS." These restraining orders are automatically issued against every party to a marital dissolution, legal separation or nullity action. They are not issued pursuant to an application that is alleging wrongful conduct. They are issued without due process. The court does not schedule a noticed hearing so that a party can contest these restraining order. Further, these restraining orders expressly state that they can be modified by the parties with a written agreement.

Restraining orders that prohibit a person from owning, possessing or using a firearm require due process which includes an application setting forth wrongful conduct, a hearing and an ability for the party to contest the grounds for the issuance of a restraining order.

In conclusion, the "STANDARD FAMILY LAW RESTRAINING ORDERS" do not affect your ability to possess, use or purchase a firearm.

RayG
07-22-2011, 8:17 AM
Hello RandyD
Many thanks for clarifying that and putting my mind at ease,
Regards
Ray

dls
07-22-2011, 8:20 AM
I had the same thing 20 years ago, I disclosed it on my CCW app, it was never an issue.

RayG
07-22-2011, 8:27 AM
Hi Randy
One more question.
Do I state 'No" under any new DOJ application for a firearm which mentions "restraining order". This may be a silly question, just want to be sure I comply.
Regards
ray

RandyD
07-22-2011, 8:30 AM
Hi Randy
One more question.
Do I state 'No" under any new DOJ application for a firearm which mentions "restraining order". This may be a silly question, just want to be sure I comply.
Regards
ray

Under your circumstances, I would answer that question with a, "No."

joefreas
07-22-2011, 8:33 AM
IFDMMA Why the divorce?

killathrilla
07-22-2011, 8:44 AM
Additionally for my understanding firearms are not in anyway considered community property therefore not subject to asset division...look it up but I remember reading some case law on this once when I was going through my divorce proceedings ....I didn't have any firearms at the time in my name so I didn't pay it the attention that would allow me to quote the case but worth u looking up....good luck homie and it will get better....just keep ur chin up!!!!

RandyD
07-22-2011, 9:10 AM
Additionally for my understanding firearms are not in anyway considered community property therefore not subject to asset division...look it up but I remember reading some case law on this once when I was going through my divorce proceedings ....I didn't have any firearms at the time in my name so I didn't pay it the attention that would allow me to quote the case but worth u looking up....good luck homie and it will get better....just keep ur chin up!!!!

There are factors to consider that would result in a firearm being characterized as a party's separate property, and not subject to division. However, I am unaware of any statute or case that excludes firearms from being considered community property. We recently had a discussion on this topic, so I would defer to the advice I gave on that thread instead of repeating all of it again on another thread.

RandyD
07-22-2011, 7:35 PM
During the work day, I was giving some more thought to this thread because I thought I overlooked a point to state, and out of the blue, Captain Obvious appeared.

The orders on the back of the Summons do affect your Second Amendment rights, because they do not state anything about prohibiting you from owning, possessing or using firearms. All other restraining orders prohibiting your use of firearms expressly states that you are prohibited.

big red
07-22-2011, 8:33 PM
Heck, my ex=wife went half of my gun collection and forced me to list it as community property but her jewelry was personal and well beyond the value of my guns. if she does not go after half of them or force you to pay her the cash value for half of them you will be lucky.

Johnnykck
07-22-2011, 8:56 PM
I just went through a nasty divorce, was finalized end of june. She even brought pictures of my guns into the court room to get the judge to take them from me. He asked her if I had threatened her in any way with them and warned her not to lie. She said I had not threatened her with them but that she feels unsafe knowing that I have them. The judge told her it was my right to own guns and he wasn't going to deny me that right. I still have my guns. I thanked the judge after everything was over for not taking my guns, he said I had nothing to thank him for. Pretty cool judge.

RayG
07-24-2011, 6:27 AM
Thanks for the update Randy,
Are you saying that in this scenario,the orders protect our second amendment rights ?
( this may be an obvious question)
Regards
Ray

jeep7081
07-24-2011, 6:40 AM
True, however, this type of RO is rarely issued. Most TRO that are issued have the CLETS order!

Keyword, most. That's how I know it does happen ;) Went through a divorce. 'Ex took $4000 out of the safe (left me a $100 bill), emptied the account, and filed for divorce. Left me to raise my 17yr. She thought I would be pissed and got one. No clets. 3 months later removed it all. Found out I wasn't pissed. *****, I got off easy. If that all I had to pay to get her gone (excluding buying her out of the house), I would have done it years before! :D

donw
07-24-2011, 7:03 AM
I went through a divorce last year. This kind of RO IS NOT the kind that will take away your firearm rights. This is a standard thing, which prevents either party from selling assets that are community property.

I was never informed that my firearm rights were at risk and my ex-wife's attorney knew I owned guns. Never a problem so don't sweat it. That said, things in a divorce can go South quickly so don't say/do anything that your soon to be ex can construe as a threat as she can take you to court and get a TRO, which will cause you to lose your firearm rights. If you have a concern that she may do this a good option is to DROS all of your guns to a trusted friend or family member NOW. This way if she does try anything you can legally say you don't own firearms and would not lose them. Once the dust settles on your divorce you can have them DROSed back to you. May cost you a little in fees, but well worth it IMO. If a TRO was issued against you then you would only have 24 hours to dispose of your guns. And yes, LEO's will come to your door to take your guns OR to ask for proof of sale to another person or FFL!

Good luck!

i received this info quite a while ago...(so it may no longer be in effect or may have changed) from a person who was going thru a divorce at the time

once the petition has been filed with the court...you can not sell, transfer, give away, rent or lease ANYTHING OF THE COMMUNITY PROPERTY. (i had that confirmed to me by an attorney during my own divorce.)

i had a SDSO deputy tell me that if you own guns, under the laudenberg act/amendment, you're not supposed to posses any guns once the petition has been filed, the RO is filed automatically, the RO does say you may not possess any firearms and you MUST appeal to the court in no less than two years to have the RO removed or it becomes permanent. (you're also supposed to surrender your firearms to LE if you possess any, too)

in the end i highly recommend; pay the fee of a consultation to an attorney and find out what your legal obligations/restraints really are...

RandyD
07-24-2011, 11:00 AM
i received this info quite a while ago...(so it may no longer be in effect or may have changed) from a person who was going thru a divorce at the time

once the petition has been filed with the court...you can not sell, transfer, give away, rent or lease ANYTHING OF THE COMMUNITY PROPERTY. (i had that confirmed to me by an attorney during my own divorce.)

i had a SDSO deputy tell me that if you own guns, under the laudenberg act/amendment, you're not supposed to posses any guns once the petition has been filed, the RO is filed automatically, the RO does say you may not possess any firearms and you MUST appeal to the court in no less than two years to have the RO removed or it becomes permanent. (you're also supposed to surrender your firearms to LE if you possess any, too)

in the end i highly recommend; pay the fee of a consultation to an attorney and find out what your legal obligations/restraints really are...

Don,

The legal advice that your were given is 100% wrong. Nothing that you wrote of what the deputy stated is legally correct.

For a court order to be enforceable, the order must be specific. If the order does not state that you have to sell or turn in your firearms, then you do not have to sell or turn in your firearms. Otherwise your right to due process has been violated.

To stop the flow of misinformation about this particular restraining order, I have attached a pdf file that is the back of a Family Law Summons for everyone to read.

KylaGWolf
07-24-2011, 11:07 PM
When I filed my divorce there was an auto restraining order but the only thing it said both parties could not dispose of any property without the permission of the court. Although I do get frustrated seeing the comments a female can get a restraining order so easy. Not true. My ex husband threatened to kidnap our daughter yet I could not get a restraining order. He made threats towards me as well. So I basically just tried to stay as far as I could from him to keep my daughter and myself safe.

Yankee Clipper
07-25-2011, 6:52 PM
When I filed my divorce there was an auto restraining order but the only thing it said both parties could not dispose of any property without the permission of the court. Although I do get frustrated seeing the comments a female can get a restraining order so easy. Not true. My ex husband threatened to kidnap our daughter yet I could not get a restraining order. He made threats towards me as well. So I basically just tried to stay as far as I could from him to keep my daughter and myself safe.
Thanks for providing 'the other side of this coin'! Your experience is indicative of the arbitrariness of our judical system. We expect our laws to protect those that need protecting but they are administered and adjudicated by fallible humans. But it is probably the best body of laws any civilized country has ever lived by. The next mother that needs an R.O. in that jurisdiction will get another judge/commissioner who will, by chance, issue an R.O. on the merits provided. And, hopefully, that same judge/commissioner will also be fair to us lowly males.