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 PoliciesText 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 AssetsText 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 PlanningText 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.
]]>| Step Number | Description | Calculations | ||
| 1 | Determine the amount by which the community property payments (typically, payments made from the date of marriage until the date of separation) reduced the principal on the mortgage. | $425,000 - $350,000 $75,000 | Loan balance at date of marriage Current loan balance Marital reduction of loan balance | |
| 2 | Calculate the community property percentage share by dividing the amount determined in step one by the purchase price. | $75,000 ÷ $500,000 15% | Marital reduction of loan balance Purchase price Community property percentage of loan reduction | |
| 3 | Determine the appreciation in the value of the house during the marriage (i.e., from the date of marriage until the date of separation). | $900,000 - 700,000 $300,000 | Current fair market value Fair market value at date of marriage Appreciation during marriage | |
| 4 | Multiply the appreciation during the marriage (the amount determined in step three) by the community property percentage share (the percentage determined in step two) to determine the community property share in the appreciation of the property. | $300,000 x 15% $45,000 | Appreciation during marriage Community property percentage of loan reduction Community property share of appreciation | |
| 5 | Add the marital reduction of loan balance(the amount determined in step four) to the amount of community funds used to pay down the principal on the mortgage (the amount determined in step one) to determine the total community interest in the residence. | $75,000 + 45,000 $120,000 | Marital reduction of loan balance Community property share of appreciation Total community interest | |
| 6 | Subtract the total community property interest from the current fair market value of the residence | $700,000 - $120,000 $580,000 | Current equity Total community interest John’s separate property interest | |
| To John: | 60,000 | John’s portion of the community property share |
| +580,000 | John’s separate property portion of the equity | |
| $640,000 | John’s total | |
| To Sarah | $60,000 | Sarah’s total |
The Solution
Fortunately, in 2018, the California legislature came to the aid of divorcing pet owners, by enacting California Family Code section 2605. This code section represents nothing less than a revolutionary change in how a pet figures into its owners’ divorce. This is the text of Family Code section 2605:(a) The court, at the request of a party to proceedings for dissolution of marriage or for legal separation of the parties, may enter an order, prior to the final determination of ownership of a pet animal, to require a party to care for the pet animal. The existence of an order providing for the care of a pet animal during the course of proceedings for dissolution of marriage or for legal separation of the parties shall not have any impact on the court’s final determination of ownership of the pet animal.
(b) Notwithstanding any other law, including, but not limited to, Section 2550, the court, at the request of a party to proceedings for dissolution of marriage or for legal separation of the parties, may assign sole or joint ownership of a pet animal taking into consideration the care of the pet animal.
(c) For purposes of this section, the following definitions shall apply:
(1) “Care” includes, but is not limited to, the prevention of acts of harm or cruelty, as described in Section 597 of the Penal Code, and the provision of food, water, veterinary care, and safe and protected shelter.
(2) “Pet animal” means any animal that is community property and kept as a household pet.”
In non-legalese, this means that:● A judge can make temporary pet custody orders that will be in effect while the divorce case is winding its way through the court system. Whatever the temporary order is, it will not have any bearing on the judge’s final pet custody order.
● At the final trial of the divorce case, the judge has the power to award custody of the pet jointly to the spouses or to one spouse, exclusively. In making this decision, the judge is required to consider which spouse has provided for the care of the pet. The term “care” is broadly defined to include protecting the pet from violence, and providing for the pet’s food, medical care and shelter.
● The judge has the power to make a joint custody order, under which the pet mommy and daddy will share their beloved’s time, as well as medical decisions. On the other hand, if the facts call for it, the judge can award the pet to one of the spouses, thereby cutting the other spouse off from any contact with the pet.
What Does this Mean For You?
As with many issues in California divorce cases, the judge has a lot of “judicial discretion” in deciding what is to be done with the family pet. For that reason, it makes sense to negotiate an agreement without involving the courts. If you and your spouse can mediate this issue, you will avoid the risk that the judge will give you even less than you are requesting, if you end up in court. If you are not able to work out a pet custody agreement with your spouse, the decision will have to be made by the judge. In such a case, each divorcing spouse should implement strategies that will maximize the likelihood that he/she will get the pet custody order they desire. This means that you need to lay the groundwork to convince the judge that what you are requesting is reasonable and/or what your spouse is asking for is not reasonable. If you have not been as involved in the care of your pet as your spouse, you should immediately take steps to get more involved. This can be accomplished by ramping up your involvement in walking, feeding, grooming, cuddling and caring for your pet’s medical needs. Conversely, if you have been the hands-on pet owner you should keep a diary of all the things that you do for your pet on a daily basis. Thinking ahead to the trial of a pet custody case, you should make sure to have as many witnesses as possible to verify your involvement with your pet. This could be anyone; your house sitter, veterinarian or next-door neighbor. Consideration should also be given to serving subpoenas to obtain veterinary and pharmaceutical records. In either event, it will be essential for you to paint as clear a picture as possible about your involvement in the care of your pet. Be sure to keep this in mind as you prepare to for a mediation or trial.Pet Sharing Provisions
Regardless of whether you and your spouse work out a sharing arrangement or the judge is asked to make a decision, there are certain provisions that divorcing couples should consider. ● Time Sharing Arrangement Sometimes, couples include in their agreements a general provision that simply states that they will share the pet. From my experience, this can cause more problems than it solves. Without a specific time-sharing schedule, divorced couples can often end up constantly negotiating over when the pet will be with each of them. Instead of a general, open-ended provision, I usually recommend to my clients that a specific time-sharing schedule be included in the agreement or court order. For example, there can be a clause that specifies which days of the week the pet will be with each spouse, and even the times when their respective custodial periods begin and end. Provision should also be made for special days and holidays, such as the pet’s birthday. ● Daily Care In some cases, it might be necessary to specify the pet’s dietary needs, particularly if it has a medical condition that requires a special diet. Other provisions for the care of the pet should also be considered, such as grooming, medications, walking and travel. ● Expenses The pet parents should also consider a provision for the sharing of expenses that are typically incurred with the care of a pet, such as food, medical care and grooming. ● Medical and End-of-Life Decisions Where the pet has a significant medical issue, there should be a provision dealing with important medical decisions. This would include surgical procedures and end of life decisions. As a general framework, the agreement or order should deal with the following:Future Modifications
As time passes, circumstances for both the pet and its owners might change in significant ways. For example, the pet might develop a medical issue that limits its mobility to the point where being moved between homes could further compromise the pet’s symptoms. Or, one of the spouses might move to a different metropolitan area. This brings up the question of whether Family Code §2605 orders can be modified. Under the law, child custody and visitation orders are always modifiable if there has been a material change of circumstances since the last order was made. However, court orders dividing the community property are not modifiable. Unless the spouses provide for modifiability of a final Family Code §2605 agreement, it is very possible that a judge might conclude that such agreements cannot be modified, over the objection of one of the spouses. That view is supported by the fact that Family Code §2605 is in the part of the Family Code that deals with division of property. With the uncertainty in how the courts will interpret Family Code §2605, any pet custody agreement must include a provision that addresses modification. If the couple wants to be able to change the order in the future, the initial agreement must specifically state that it is modifiable, upon the showing of a change in circumstance. On the other hand, if the couple wants the pet custody order to be final and not changeable, their agreement should state that, as well.Conclusion
In dealing with disputes regarding the custody of a minor child, the law requires that the hallmark of any agreement or ruling must be what is in the child’s “best interests.” Even though Family Code Section 2605 does not expressly incorporate that concept, the process of determining a pet’s post-divorce future necessarily requires the consideration of what is in the pet’s best interests. It is heartening for divorcing pet owners to know that this new law finally gives pets a voice in that process.-o0o-
Please email us at GlenRabenn@gmail.com if you have any questions regarding this, or any other family law topic.]]>Since about 50 percent of all marriages end in divorce, it's likely that a California parent could remarry in the future. In some cases, the parent's new spouse may also have joint or even sole custody of their own children. Transitioning into what the U.S. Census Bureau calls a "blended family" can be difficult, particularly on finances.
Before two parents get married, it is recommended that they come to some common agreements. This includes deciding what type of financial example they want to set for their children. They should also agree on their spending habits, how they intend to save for the future and how to use any excess money. Furthermore, parents who are creating blended families should determine how to deal with one or more of the children needing more resources than the others.
It is also recommended that those looking to create blended families consider getting a prenuptial agreement. This agreement can protect the kids and serves as a financial road map for how expenses and responsibilities will be shared. Even if the document is not formalized, it can ensure that both parents talk about the important financial aspects of blending two families together.
No matter what a parent's financial situation may be, a divorce can be difficult. If a parent does decide to get married to a new spouse, there could potentially be an impact on any ordered child or spousal support. An attorney may walk the parent through how a new marriage will impact existing support payments. The attorney may also assist with drafting a prenuptial agreement that can protect any children the parent had prior to entering the marriage.
]]>California parents are considered the natural guardians of their children. In some cases, another family member, such as a sibling, may need to gain custody of a minor child because the parents are deceased or are unable or unfit to care for the child.
In some cases, a parent may voluntarily relinquish custody to a sibling. This may help avoid an emotionally draining courtroom battle. In such cases, the sibling who is trying to gain custody will simply need to have the appropriate paperwork signed by the parent and approved by a judge.
If the parent does not agree to sign over his or her rights, a contested proceeding may be necessary. A petition for guardianship of the child should be filed in the location where the child lives.
To take away custody from a parent there must be a finding by the court that the parent is abusive or unfit to take care of the child. Judges usually believe that it is in the best interests of the child to remain with the natural parents, so a prospective guardian should be prepared to present proof about why it is not in the child's best interests to remain with the parent.
Anyone who is considering filing a petition to gain custody of a sibling may wish to consult an attorney. An attorney may be able to help ensure that the papers are filed in the appropriate jurisdiction, that the court rules are followed and that sufficient evidence is presented to demonstrate the need for a change in child custody.
]]>Orange County parents who are getting a divorce have alternatives to going before a judge to determine child support. They can conduct informal negotiations with the help of their attorneys, and they can participate in these negotiations to the degree that they feel comfortable. In some cases, attorneys may simply carry out these negotiations on behalf of their clients.
More formal negotiations may be conducted using mediation, collaborative law or arbitration. These are all forms of alternative dispute resolution, and they require participation from the parents. In the first two, the aim is to resolve conflict and reach an agreement that satisfies all parties. Arbitration involves sharing all evidence and arguments with a neutral person who then makes a decision. It is not as commonly used in family law as it is in other areas, and the decision of the arbitrator may not be final.
Once an agreement is reached, it is usually put into writing and submitted to a judge for approval. The judge reviews the agreement to ensure that it does not violate any state laws and that it has been negotiated fairly. There may be an informal session with the judge and the parents in which the judge reviews the facts to ensure both parents understand them. The agreement then becomes legally binding.
A legally binding agreement can be important in helping parents ensure that child support is paid. With this agreement in place, a parent can access child support enforcement services if the other parent does not pay support. Parents whose income changes because they have lost a job or for some other reason can apply for a child support modification if they can no longer meet their obligations.
]]>Many people think of prenuptial agreements as unromantic or perhaps even dooming to a marriage. After the honeymoon period has passed and you gain a more realistic perspective, you may reconsider and wonder about the specifics of a postnuptial agreement. This is a particularly wise decision for stay-at-home moms (and dads). Here are a few reasons why.
You need protection from career atrophy
One of the issues that most commonly affect parents who stay at home is eventual career atrophy. The longer you stay out of the workforce to raise your child, the more difficult it will likely be to find a job later. Many moms stay at home for years longer than they had planned to. A postnuptial agreement can help protect you from the negative impact this will have on your career.
Staying at home changes family finances
Going from having two earners in the family to having only one is often a stressful transition. Even if you have planned for this change, it can have an unexpected impact on your finances, and this can cause discord in your marriage. A postnuptial agreement is a great way to solidify your own financial security and ensure that you are not left vulnerable because of your decision to raise children.
You should prepare for the unexpected
At the end of the day, nobody wants to imagine going through a divorce. Divorce is a common occurrence, though, and one that every couple should accept the possibility of. A postnuptial agreement is ideal for protecting both spouses and providing much-needed security to a parent who decides to stay at home.
If you are interested in drafting a postnuptial agreement, you should consult with a legal professional. Call an attorney for more information on this or any other family law issues you may have.
]]>There are steps that Orange County couples who are ending their marriage can take when they are contemplating a divorce that might give them a better idea of what their financial situation will look like after the divorce. Friends and family members might offer advice, but it might not be appropriate for every situation. Professionals, such as attorneys and certified divorce financial analysts, are likely to offer more reliable counsel.
It is important for people to understand spending in their household and what their assets and debts are. They might want to gather financial documentation including tax returns, pay stubs, credit card bills and bank statements. This will give them a picture of how property might be divided in the divorce as well. A budget can help people understand their present financial needs and anticipate future ones.
The other spouse may be difficult to work with in some divorces. This could include a reluctance to share information. Having the documents may help in these circumstances, but in some cases, it might be necessary to go through the court system to get the necessary information. Even if the other spouse is behaving in an obstructionist way, this is not the right time to make any major financial decisions including changing a will or beneficiary designations.
According to community property laws in California, most assets and debts acquired after a couple marries are considered the property of both individuals. This means that if there is a retirement account that only one person contributed to, the account might still be considered the property of both people. Investments or business ownership may make this property division particularly complex, and thus an estranged couple in this type of a situation might want to meet with their respective attorneys and see how an agreement could be negotiated.
]]>People in Orange County who are getting a divorce can take steps to help their children adjust. Speaking to children early on in the process is important, as they will often begin to wonder what is wrong when parents move into separate bedrooms or there are other changes. Children need reassurance and the freedom to ask any questions they may have. If they are not asking questions, parents may want to periodically talk to them about the divorce and how they are feeling.
Children may need to grieve in their own way. They may also benefit from talking to a therapist. Parents can help by avoiding conflict. This may include being flexible when appointments are missed or similar issues arise. Parents should also avoid using their children to manipulate one another or to carry messages back and forth. They should not talk about one another in front of the children, and parenting issues should be dealt with privately. However angry one parent may be at the other, children still love both their parents and may be hurt by seeing one parent denigrated by the other.
It is also important that parents take care of themselves. Self-care is critical for parents to make sure that they maintain the resources they need to support their children.
The issues that arise during divorce may be painful, but it is important for parents to stay focused on the best interests of the child. Parents may want to explore options for sharing custody so that children get to spend a significant amount of time with each of them. Even if physical custody is not shared, a generous visitation agreement may help keep the child's relationship with the noncustodial parent strong. A parenting agreement can cover areas of potential conflict and help set guidelines for consistent parenting between households.
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