What are the Effects of the Standard Family Law [Automatic] Restraining Orders on Estate Plans in San Diego Superior Court for a Legal Separation or Divorce: 2014

When a petition and summons for a legal separation or divorce is filed in San Diego Superior Court, the standard restraining orders are valid on the Petitioner upon the filing by the San Diego Superior Court Clerk. The standard restraining orders are valid on Respondent upon lawful service of the Petition and Summons. It is very important to read all pleadings, of course, very carefully and this is especially true with the standard restraining orders on the summons. There are many other standard restraining orders, such as not removing the child or children from the State of California without a court order or written agreement of the parties, however this article will only address the estate planning restrictions.

First, it is important to understand what a non probate transfer means. There are many very experienced and qualified estate planning attorneys in San Diego and it is always advisable to seek expert advice before forming a new estate plan or modifying or revoking your existing estate plan. A "nonprobate transfer" is defined as an instrument, with the exception of a will, that makes a transfer, upon death, of property which includes revocable living trusts, pay on death account in a financial institution, Totten trust, transfer on death registration of personal property, and/or other instruments described in California Probate Code Section 5000. Some examples, but these are not an inclusive list, are changes in pension plan[s] beneficiaries, individual retirement accounts [IRS], employee benefit plans and life insurance whether whole life or term policy.

For this article, there are four sections: no restrictions; permissible with prior notice to the other party; permissible but require court order or prior written consent of other party and permissible only with a valid court order. For reference, the applicable California Family Law Code Sections are listed. As the law is ever changing, as with all the articles and blog posts, verify first the current state of the law.

1. NO RESTRICTIONS
   You may create, modify or revoke a will under California Family Law Code Section 2040 (b)(1).
   You may create, but you cannot fund a new revocable or irrevocable living trust under California Family Law Code Section 2040 (b)(4) and California Family Law Code Section 2040 (a)(2).
2. PERMISSIBLE WITH PRIOR NOTICE TO OTHER PARTY
   You may revoke a revocable trust with the proper legal notice which must be filed and served on a party before any changes are made under California Family Law Code Sections 2040 (b)(2) and (d)(1).
   You may revoke the transfer to the beneficiary of a nonprobate transfer and proper legal notice must be served and filed before the any changes would take effect under California Family Law Code Sections 2040 (b)(2) and (d)(1).
   You may eliminate a right of survivorship for property {community property with right of survivorship or joint tenancy} with proper legal notice which must be filed and served before the changes take effect under California Family Law Code Sections 2040 (b)(3) and (d)(1).
3. PERMISSIBLE WITH PRIOR WRITTEN CONSENT OF OTHER PARTY OR COURT ORDER
   You may modify or create a nonprobate transfer which affects the disposition of property which is the subject of the transfer under California Family Law Code Sections 2040 (a)(4) and (d)(1) and California Probate Code Section 5000 You may fund a new revocable or non-revocable living trust under California Family Law Code Sections §2040 (a)(2) and (a)(4).
4. PERMISSIBLE ONLY WITH PRIOR COURT ORDER
   You may cash, borrow against, cancel, transfer, dispose of, and/or changing the beneficiaries of any insurance or other coverage [which includes life, health, automobile, and/or disability], held for the benefit of the parties and their children or child for whom support may be ordered under California Family Law Code Section 2040 (a)(3).
   You may Fund or create a nonprobate transfer without the other spouse’s consent under California Family Code Sections 2040 (a)(4) and (d)(1).

As you can see, this area of estate planning as it relates to family law and the standard restraining orders, as well as other family law codes and other laws, is very complicated. Making a mistake can be extremely costly and subject the offender to sanctions and even contempt of court. The law office of Doppelt and Forney, APLC offers a virtual consultation up to 30 minutes which is no charge and confidential whether you hire the firm or not.