Standard Family Law Restraining Orders

STANDARD FAMILY LAW RESTRAINING ORDERS

The Summons (Family Law) must be served along with the Petition. This is the form that informs the Respondent that an action for dissolution of marriage has been filed and that the Respondent has thirty (30) days to file the Response (Family Law).

Page 2 of the Summons) contains four "Standard Restraining Orders," which became effective when the Petition and Summons were served. While your case is pending, you and your spouse will be required to comply with all four of the Standard Family Law Restraining Orders. A violation of any of these orders can subject the offending spouse to being held in contempt of Court, which could result in imprisonment and/or a substantial fine.

Standard Restraining Order Number 1: Your Minor Children

Text of the Restraining Order:

"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."

Comment:

This order restrains you and your spouse from taking any of your children outside of California, unless you get the written approval from the other spouse or a court order. This means, for example, that you cannot take your child to a neighboring state or Mexico, even if it is for a few days.

You should not take any trips outside of California unless you first get your spouse's written consent to do so. If your spouse will not give you such consent, we can file a Request for Orders with the Superior Court. If the judge believes that the trip you plan is in your child's best interests, your request would probably be granted. However, it can take up to 3 months to obtain a Court order, so you should let us know immediately if your spouse is refusing to agree to any out of state vacation plans you have with your children.

This order also restrains you and your spouse from applying for a new or replacement passport for your child, unless the other spouse agrees in writing or the Court issues an order permitting the applying parent to obtain a new or replacement passport for the child.

☞ IMPORTANT POINT: You should not plan any out of state travel with your child, including the purchase of any non-refundable airline tickets or hotel reservations, without first contacting our office.

Standard Restraining Order Number 2: Your Assets

Text of the Restraining Order:

"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 any 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.

Notwithstanding the foregoing, nothing in the restraining order shall 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 his or her 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 his or her attorney's retainer for fees and costs under this provision shall account to the other party for the use of the property."

Comment:

The purpose of this order is to compel the spouses to maintain the status quo of their assets while the dissolution action is pending. It prevents you and your spouse from disposing or borrowing against any of your assets, unless you get the written approval from the your spouse or a court order. This means that you cannot do any of the following without the written agreement of your spouse or a court order:

● Sell a car, or a piece of furniture.

● Liquidate a stock or other investment.

● Borrow against your home or other real estate.

● Transfer money from one account to another.

However, you are allowed to sell or liquidate assets, if you need to do so to pay for necessities of life, such as shelter, food, clothing, gasoline, etc. You are also allowed to use sell or dispose of assets if you ordinarily do so in the ordinary course of your business. For example, if you are in the business of buying and selling real estate, you can continue to do so without first obtaining your spouse's consent or a court order. You are also allowed to use your assets to pay for your attorneys fees and costs in this case. In any event, this restraining order requires you to inform your spouse that you intend to use assets for any purpose at least five days before you actually do so.

☞ IMPORTANT POINT: You should contact our office before you sell, liquidate or borrow against any of your assets, for any purpose. In addition, be sure to keep complete and accurate records of what you do with the assets that you use, regardless of the purpose.

Standard Restraining Order Number 3: Insurance Policies

Text of the Restraining Order:

"Restraining both parties from cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any 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."

Comment:

This order restrains you and your spouse from doing anything with any insurance policy or coverage. This means that you cannot do any of the following:

●   Remove your spouse's name from any existing insurance policies, including medical and automobile insurance.

●   Change the beneficiary designation of your life insurance from your spouse to your child.

●   Borrow against any life insurance policies that have cash value.

This restraining order does not expressly state that you can terminate or modify an insurance policy or coverage if you obtain your spouse's consent or a Court order. However, it still is possible for you and your spouse to agree to such a change or for the Court to order any such change.

It should also be noted that this restraining order does not specifically require you or your spouse to actually pay an insurance premium or for medical insurance coverage. This means that your spouse could allow your coverage to lapse, simply by not paying for the premium or coverage.

Important Points:

☞ Do not make any changes to any life, health, automobile or disability insurance policies, or allow any policies to lapse, without first discussing it with me.

☞ If you are covered by your spouse's medical or life insurance, contact the insurance company to verify that you are still covered. In addition, you should verify that you are still covered on any family automobile insurance policy.

Standard Restraining Order Number 4: Estate Planning

Text of the Restraining Order:

"(a) 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) Nothing in this section restrains 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) [This is the text of what the provision in the summons must say. It is intentionally not included in this memorandum.]

(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).

Comment:

The primary purpose of this restraining order is to prevent the spouses from placing assets in an irrevokable trust in such a manner that the other spouse's ownership interest in the asset is affected or somehow impaired. If spouse were permitted to create such trusts, the other spouse's might not be able to obtain his/her share of the community property.

A secondary purpose of this restraining order is to require notification of the other spouse that an existing trust is being revoked or modified. This gives the other spouse the ability to consider whether changes should be made to his/her estate plan.

Important Points:

☞ If you have an estate plan that has a trust or if you are contemplating having one prepared for you, it must be revokable. You cannot create an irrevokable trust, into which you place any of your assets, regardless of whether they are community property or your separate property.

☞ You should consider terminating any joint tenancies, with the right of survivorship, in any real estate that you own with your spouse. If you fail to do so, if you were to die while the dissolution case is pending, your spouse would be awarded the entire property, even if that is not what you want to happen. Your spouse must be notified before ay such termination is recorded.