When a Divorce Proceeding is Commenced
Updated: Jul 30, 2021
In California when a Petition is filed with the Superior Court for Dissolution of Marriage, Legal Separation or Nullity of Marriage restraining orders are automatically imposed on the parties. In spite of the fact that the restraining orders are automatically imposed they are no less official or enforceable. As with any court order the violation of these restraining orders is subject to a contempt proceeding that can ultimately lead to imprisonment.
The restraining orders are:
1. Removing a minor child or children from the state without the prior written consent of the other party or an order of the court.
2. 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 minor child or children; and
3. 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.
In order to allow a party needing to protect their interests, California law does not preclude using community property for payment of attorney fees. On other proposed extraordinary expenditures the parties are required to notify each other at least five business days prior to their being incurred and then must account to the court for them.
These restraining orders are effective against the Petitioner upon filing of the Petition and against the Respondent once the Respondent has been personally served with the service documents or upon the signing of a Notice and Acknowledgement of Receipt form.
The restraining orders are in effect until the judgment is entered, the Petition dismissed or the Court makes an Order modifying the restraining orders.
Note, that in emergency situations there are court procedures for handling issues in one day. These are called “ex parte” matters and although they can be done on one’s own, most are handled by attorneys.
As with everything else in life there are gradients involved in resolving a family law dispute. They are:
1. The parties resolving all issues on their own, reducing them to a writing (Marital Settlement Agreement/MSA) which takes effect immediately and six months after service a final decree can be obtained from the Court on the relationship.
All of the above can be done on a do it yourself basis or in court terminology “in pro per”. Do it yourself information is available from the Courts, in bookstores and on line.
2. The parties work with an independent mediator.
3. One of the parties has an attorney and the other represents him/herself until such time as an agreement is entered into. At that point it is best to have the unrepresented party retain an attorney to review the MSA and the final divorce papers before they are signed and entered with the Court.
4. Both parties have legal representation with all issues being resolved out of Court.
5. A Mediator works with the parties and their counsel to finalize an MSA. And
6. Litigation, and appeals if necessary.
There may be an apparent simplicity to a family law matter and in many instances that works out in fact. However, family law judgments whether obtained by the agreements of the parties or after a full trial are the most enforceable, least avoidable obligations in all of law.
Support orders are non-dischargeable in bankruptcy — this is not even true of most tax liabilities. Enforcement can be done through a private attorney or through a local District Attorney’s (D/A’s) office that will at no financial cost (however this area of the D/A’s office is a monumental bureaucratic maze) assist a non-supported spouse to enforce a judgment not only in their local jurisdiction but through affiliations with every other D/A’s office in the United States pursuant to the Uniform Enforcement of Support Act which has been adopted by all 50 states.
This is not intended to scare. It is to see that MSA’s and Judgments are taken as seriously as they should be and that they are legally modified when circumstances and conditions change. It is too frequent an occurrence to have an existing court order changed by a verbal agreement between the parties and to then have the original agreement terms subsequently enforced against the other party when things go awry.
If a husband loses his job, gets his ex-wife’s agreement to take a lesser support payment and makes this change without a legal modification of their Dissolution Decree he can find himself in a position where he will have to pay the full amount of the original decree to his wife and in most cases attorney’s fees and costs as well.
When the above is understood and applied all goes as expected and this is of no small importance in these cases.