Automatic Restraining Orders in California Divorces
When you are going through a divorce in California, there are several important legal and practical considerations to keep in mind. In many ways, these legal and practical considerations overlap. For example, failure to understand your legal duties (yes, you have them) can lead to negative consequences in your divorce. One way that this immediately comes into play is with the automatic restraining orders that apply to both spouses in a California divorce.
The Four Automatic Restraining Orders
When you file for divorce, one of the forms you need to include in your filing is the Summons (Family Law), California Form FL-110. Page two of the Summons (Family
Law) includes a section entitled, “Standard Family Law Restraining Orders.” These are the four automatic restraining orders that apply during all California divorces.
Once you are involved in a divorce, California law prohibits you from:
- Moving your minor children out of state or applying for a passport for your minor children without your spouse’s consent or a court order;
- Cashing, borrowing against, cancelling, transferring, cancelling, or changing the beneficiaries of any insurance policy (including life, health, automobile, and disability) held for the benefit of your spouse or your minor children;
- Selling, gifting, taking out a loan against, or concealing any real estate or items of personal property without your spouse’s consent or a court order, except “in the usual course of business or for the necessities of life;” and
- Creating or modifying a nonprobate transfer (for example, a revocable trust) without your spouse’s consent or a court order.
As a party to divorce proceedings in California, you are also required to notify your spouse of (and account to the court for) any “extraordinary expenditures,” other than the legal fees for your divorce.
When do the Automatic Restraining Orders Apply?
As noted on the Summons (Family Law), the automatic restraining orders are effective “immediately.” But, what does this really mean?
For the spouse who files for divorce, this means that the automatic restraining orders apply from the date of filing. For the non-filing spouse, the automatic restraining orders apply from the date of service. The automatic restraining orders remain in effect until the earlier of (i) issuance of a court order that that modifies one or more of the restraining orders, (ii) dismissal of the divorce proceedings, or (iii) issuance of a judgment finalizing the divorce.
What Can You Do While Your Divorce is Pending?
The automatic restraining orders are intended to prevent each spouse from taking drastic actions that could negatively impact the other’s ability to enforce his or her rights in the divorce. However, they are not intended to prevent either spouse from living his or her life. As a result, while the automatic restraining orders prohibit certain major unilateral financial and family-related decisions, they still allow reasonable amounts of discretion and flexibility. For example, the automatic restraining orders do not prohibit:
- Taking your children on vacation in California;
- Buying or selling items in the ordinary course or to purchase necessities; or
- Creating, modifying, or revoking a will.
In addition, while a major decision like selling the family home would typically violate the automatic restraining orders, note that spouses can stipulate (formally agree) to do things that would otherwise be prohibited. In appropriate circumstances, individual spouses can also seek court orders that modify the standard restrictions.
Speak with Attorney Richard M. Renkin about Your California Divorce
If you have questions about what you can and cannot do during a divorce, we invite you to contact us for a case evaluation. To speak with divorce attorney and Certified Family Law Specialist Richard M. Renkin, call 619-299-7100 or send us a message online today.
Image via Flixr by Sebastien Wiertz
