Cal. Codes » Family Code

Cal. Family Code § 2040

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(a)In addition to the contents required by Section 412.20 of the Code of Civil Procedure, the summons shall contain a temporary restraining order:

(1)Restraining both parties from removing the minor child or children of the parties, if any, from the state, or from applying for a new or replacement passport for the minor child or children, without the prior written consent of the other party or an order of the court.

(2)(A)Restraining both parties from 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 proposed extraordinary expenditures at least five 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.

(B)Notwithstanding subparagraph (A), the restraining order shall not preclude a party from using community property, quasi-community property, or the party’s own separate property to pay reasonable attorney’s fees and costs in order to retain legal counsel in the proceeding. A party who uses community property or quasi-community property to pay the party’s attorney’s retainer for fees and costs under this provision shall account to the community for the use of the property. A party who uses other property that is subsequently determined to be the separate property of the other party to pay the party’s attorney’s retainer for fees and costs under this provision shall account to the other party for the use of the property.

(3)Restraining both parties from cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of 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.

(4)Restraining both parties from 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.

(b)This section does not restrain any of the following:

(1)Creation, modification, or revocation of a will.

(2)Revocation of a nonprobate transfer, including a revocable trust, pursuant to the instrument, provided that notice of the change is filed and served on the other party before the change takes effect.

(3)Elimination of a right of survivorship to property, provided that notice of the change is filed and served on the other party before the change takes effect.

(4)Creation of an unfunded revocable or irrevocable trust.

(5)Execution and filing of a disclaimer pursuant to Part 8 (commencing with Section 260) of Division 2 of the Probate Code.

(c)In all actions filed on and after January 1, 1995, the summons shall contain the following notice:


“WARNING: California law provides that, for purposes of division of property upon dissolution of marriage or legal separation, property acquired by the parties during marriage in joint form is presumed to be community property. If either party to this action should die before the jointly held community property is divided, the language of how title is held in the deed (i.e., joint tenancy, tenants in common, or community property) will be controlling and not the community property presumption. You should consult your attorney if you want the community property presumption to be written into the recorded title to the property.”


(d)For the purposes of this section:

(1)“Nonprobate transfer” means an instrument, other than a will, that makes a transfer of property on death, including a revocable trust, pay on death account in a financial institution, Totten trust, transfer on death registration of personal property, revocable transfer on death deed, or other instrument of a type described in Section 5000 of the Probate Code.

(2)“Nonprobate transfer” does not include a provision for the transfer of property on death in an insurance policy or other coverage held for the benefit of the parties and their child or children for whom support may be ordered, to the extent that the provision is subject to paragraph (3) of subdivision (a).

(e)The restraining order included in the summons shall include descriptions of the notices required by paragraphs (2) and (3) of subdivision (b).

(f)This section shall remain in effect only until January 1, 2027, and as of that date is repealed.

Notes of Decisions
Cited in 22 cases (7 in the last 5 years), 1999–2025 · leading case: Mitchell v. Mitchell
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Mitchell v. Mitchell (1999) calctapp · cites it 6× “As a result, both an automatic temporary restraining order (Fam. Code, § 2040, subd. (a)) and a court-ordered preliminary injunction went into effect which prohibited both of them from “transferring, *1382 encumbering, hypothecating, concealing, or in any way disposing of any…”
In Re Marriage of McTiernan and Dubrow (2005) calctapp · cites it 2× “(Fam.Code, § 2040, subd. (b).) In her appeal, wife contends that the court abused its discretion by limiting her postdissolution spousal support to two years, and by characterizing several months of pendente lite payments as community property distributions rather than temporary…”
In Re the Estate of Hoffman (2002) sd · cites it 2× “" See Cal Fam Code § 2040(b)(3). [4] Shortly after Cheryl's death, the divorce was dismissed by stipulation.”
Raney v. Cerkueira (2019) calctapp5d · cites it 2× “Family Code section 2040, subdivision (b)(3) (hereafter, section 2040(b)(3) ) 1 provides that the standard automatic temporary restraining order binding parties in a pending dissolution proceeding (see § 2040, subd.”
Hohu v. Hatch (2013) cand · cites it 3× “California Family Code § 2040 subjects all parties to marital dissolution proceedings to certain automatic temporary restraining orders (“TRO”), including an order: Restraining both parties from cashing, borrowing against, canceling, transferring, disposing of, or changing the…”
In re Cohen (2014) cacb “She claims that by entering into that settlement Debtor violated the automatic temporary restraining order (“ATRO”) under California Family Code § 2040(a)(2). Among other things, the ATRO restrains both divorcing spouses from transferring, encumbering, hypothecat-ing,…”
West Coast Life Insurance v. Clark (2014) cacd “Cal. Fam.Code § 2040(a)(3). This order remains in effect until a final judgment of dissolution is *937 entered, unless modified or terminated by court order at an earlier date.”
Smittcamp v. Smittcamp CA5 (2025) calctapp · cites it 4× “Smittcamp 2012 Family Trust (Family Trust) pursuant to Probate Code section 17200 and Family Code section 2040. After a five-day bench trial, the trial court concluded a 2017 special bonus Bob received from his company was a mixed-character asset, and the court apportioned…”
In re Brace (2020) cal · cites it 2× “In 1994, the Legislature amended Family Code section 2040 to specify that when one party files for divorce, “the summons shall contain the following notice: ‘WARNING: California law provides that, for purposes of division of property upon dissolution of marriage or legal…”
Marriage of Pruitt and Burwell CA5 (2021) calctapp · cites it 2× “” (Fam. Code, § 2040, subd. (a)(2)(A), italics added.”
Thompson v. Lujan CA5 (2021) calctapp · cites it 2× “As a result of the summons served in the divorce action, both Thompson and Pavlik were restrained, pursuant to Family Code section 2040, subdivision (a)(2), from disposing of or transferring any real or personal property without notice of hearing through the Kern County Superior…”
Estate of Spencer CA2/6 (2022) calctapp · cites it 2× “) “In 1994, the Legislature amended Family Code section 2040 to specify that when one party files for divorce, ‘the summons shall contain the following notice: “WARNING: .”
Show all 22 citing cases →
— Cal. Family Code § 2040(a)(2) — 1 case
In re Cohen (2014) cacb “She claims that by entering into that settlement Debtor violated the automatic temporary restraining order (“ATRO”) under California Family Code § 2040(a)(2). Among other things, the ATRO restrains both divorcing spouses from transferring, encumbering, hypothecat-ing,…”
— Cal. Family Code § 2040(a)(3) — 1 case
West Coast Life Insurance v. Clark (2014) cacd “Cal. Fam.Code § 2040(a)(3). This order remains in effect until a final judgment of dissolution is *937 entered, unless modified or terminated by court order at an earlier date.”
— Cal. Family Code § 2040(b)(3) — 1 case
In Re the Estate of Hoffman (2002) sd “" See Cal Fam Code § 2040(b)(3). [4] Shortly after Cheryl's death, the divorce was dismissed by stipulation.”
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