Part One: What Are The Standard Family Law Restraining Orders In A Divorce, Legal Separation Or Nullity In San Diego In 2014?

ARE THESE ORDERS AUTOMATIC UPON THE FILING OF THE PETITION & SUMMONS IN A LEGAL SEPARATION, NULLITY OR DIVORCE IN SAN DIEGO SUPERIOR COURT?

In all divorce, nullity and legal separation cases in San Diego Superior Court, there is both the petition and summons [as well as other mandatory pleadings]. Upon filing, these orders are in force regarding the petitioner. Upon lawful service, these orders are in force regarding the respondent. These are automatic and no additional pleadings need to be filed for these to be in effect. They remain in effect pending judgment. These can be modified by written agreement or court order.

WHAT IS THE LAW WHICH GOVERNS STANDARD FAMILY LAW RESTRAINING ORDERS?

California Family Law Code Section 2040 governs these orders. The law provides that certain Standard Family Law Restraining Orders (which, in the past have been referred to as automatic temporary restraining orders) are valid and in effect automatically upon the filing of a Petition for Nullity, Dissolution or Legal Separation.

WHAT ARE YOU NOT ALLOWED TO DO?

Per California Family Law Code Section 2040 (a), the Summons contains orders that restrain both parents and spouses for the below activities and this list is not all inclusive:

  • not allowed to remove their minor child or children California.
  • not allowed to apply for a new or replacement passport for the minor child or children without court order or prior written consent of the other parent
  • not allowed to transfer, encumber, hypothecate, conceal, or in any way dispose of any personal property or real property. It does not matter whether the property is community, quasi-community, or separate. This also is not allowed without the written consent of the other party or an order of the court. There is an exception for the usual course of business and/or for the necessities of life. There is also a further requirement that each party is to notify the other party for proposed extraordinary expenditures at least five business days before incurring those expenditures. In addition, there needs to be an accounting to the Court for all extraordinary expenditures made after service of the Summons.
  • not allowed to cash, borrow against, cancel, transfer, dispose of or change the beneficiaries of any insurance or other coverage, including but not limited to health, life, disability, vehicle, which is held for the benefit of their child or children or spouses or parents for whom child and/or spousal support may be ordered.
  • not allowed to modify a nonprobate transfer or create a nonprobate transfer in a manner that affects the disposition of property subject to the transfer without an order from the court or the written consent of the other parent or spouse.
WHAT ARE YOU ALLOWED TO DO?

Below is a list of permitted activities even through the family law restraining order are in effect. This list is not all inclusive:

  • allowed to use any property to pay reasonable attorney's fees and costs. This is so that each party can have access to funds to retain an attorney. As with the extraordinary expenditures, there must be an accounting but only for the use of community funds or the other parent or spouse’s separate property when attorney fees are paid.
  • allowed to create, modify, or revoke a will.
  • allowed to revoke a nonprobate transfer which includes a revocable trust however notice of the change must be filed and served on the other party before the change takes effect.
HOW CAN A SAN DIEGO LOCAL FAMILY LAW FIRM HELP?

As you can see, this area {and many areas} of family law are very complicated. The Law Firm of Doppelt & Forney, a Professional Law Corporation offers a consultation pre family law filing or post family law filing. Please feel free to call their office to schedule your complimentary and confidential consultation for your family law case in San Diego.

Contact Us FREE IN-OFFICE CONSULTATION
Phone Number: 800.769.4748
captcha