After a dissolution of marriage case is filed, the Petitioner must personally serve the petition and summons on the Respondent. The summons informs the Respondent that an action for dissolution of marriage has been filed and that the Respondent has thirty days to file the Response (Family Law).
Page 2 of the summons contains four “Standard Restraining Orders,” which become effective when the petition and summons are served on the respondent. While the case is pending, each spouse is 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:
“[Each party is restrained 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 both spouses from taking any of a child outside of California, without the written approval from the other spouse or a Court order. This means, for example, that a spouse cannot take a child to a neighboring state or Mexico, even if it is for a few days.
This order also restrains each spouse from applying for a new or replacement passport for a 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.
Key Point:
☞ Neither spouse should plan any out of state travel with a child, including the purchase of any non-refundable airline tickets or hotel reservations. If the other spouse will not give such consent, a Request for Orders must be filed with the local Superior Court. If the judge believes that the trip is in the child’s best interests, the request will probably be granted.
Standard Restraining Order Number 2: Insurance Policies
Text of the Restraining Order:
“[Each party is restrained 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 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.
Key Points:
☞ Do not make any changes to any life, health, automobile or disability insurance policies, or allow any policies to lapse, without obtaining your spouse’s written consent or a Court order.
☞ 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 3: Your Assets
Text of the Restraining Order:
“[Each party is restrained 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.”
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 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, 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 your divorce 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.
Key Point:
☞ A spouse should keep complete and accurate records of what he/she does with the assets that are used, regardless of the purpose.
Standard Restraining Order Number 4: Estate Planning
Text of the Restraining Order:
“[Both spouses are restrained from] creating a nonprobate transfer [i.e., a trust] 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. Before revocation of a nonprobate transfer can take effect or a right of survivorship to property can be eliminated, notice of the change must be filed and served on the other party.”
Comment:
This order does NOT restrain the parties from the…
(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.
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 a spouse were permitted to create such trusts, the other spouse 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.
Key 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, and 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 any such termination is recorded.
