RESTRAINING
ORDERS
IN THE
CALIFORNIA
DIVORCE| RESTRAINING
ORDERS
IN THE
CALIFORNIA
DIVORCE |
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Let's face it: just
the term, "restraining order," is sort of scary. It conjures up
images of wild domestic violence, stalking, threats, and wife
abuse. It's not something that most people think will ever be
applied to them. Oddly, every person who gets a divorce in the State of California will be under a restraining order for most of time that the divorce is being processed. For the person who initiates the divorce (the Petitioner), the restraining order goes into effect when the case is filed. For the other spouse (the Respondent) the restraining order goes into effect as soon as the papers are served on him/her. This isn't the way that it used to be, of course. In the old days, you had to allege that the other party had actually done something wrong, that he or she had threatened you, your children, or your property in some way, before a restraining order would be issued. California still has that type of restraining order (we'll discuss it a bit more further down the page) but that's NOT the case with the average divorce. The normal restraining orders in the California divorce are listed on the back of Family Law Form FL-110, the Summons. If you want to boil down the legal gobbledegook, they basically just say, "Come on, be nice." To be a little more specific, they say that you and your spouse are restrained from: 1 - "removing the minor child or children of the parties, if any, from the state without the prior written consent of the other party or an order of the court." In other words, don't even think of taking the kids out of the state once the divorce is filed unless your spouse or the judge says it's okay. 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." Don't go out and cancel your life insurance, the insurance on your spouse's car, or any health insurance policies for your spouse or kids. And, while you're at it, don't change the beneficiaries on your insurance policies. 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." Which means, don't be ripping off the bank accounts or selling the furniture unless your spouse or a judge tells you it's okay. That doesn't mean that you can't write checks for the electric bill or groceries, but it's not a real good idea to be buying little red sports cars. (My personal favorite in that phrase is, "hypothecating." You wonder how many thousands of people receive a summons each year and think, "Oh, my God - I can't even hypothecate until the divorce is over.") 4 - "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 order of the court. Before revocation of a nonprobate transfer can take effect, or a right to survivorship to property can be eliminated, notice of the change must be filed and served on the other party." Now there's a phrase that you don't see everyday. Basically, nonprobate means not involving a will, so a nonprobate transfer would be a property transfer or right that didn't involve your will. For instance, if you had borrowed money from your spouse and secured the loan with an agreement that he/she would inherit your gold mine if something happened to you, you aren't supposed to cancel that without notifying the court and your spouse. And, finally: "You must notify each other of any proposed extraordinary expenditures at least 5 business days prior to incurring these extraordinary expenditures and account to the court for all extraordinary expenditures made after these restraining orders are effective. However, you may use community property, quasi-community property, or your own separate property to pay for an attorney to help you or to pay court costs." Isn't that cute? You're not allowed to go out and buy a little red sports car without notifying the court, BUT we want to make it REAL clear that we don't mean that you can't hire an attorney, okay? So, that's the ordinary type of restraining order that everyone who gets a divorce in California is subject to. Don't steal the kids or rip off the property and try to act like a decent human being. Now lets' talk about the other, more complicated type of restraining order. We all know of cases where one or both parties get COMPLETELY out of control in a divorce. We've all heard the stories of a guy going out with a chain saw and cutting the house in two, or a wife working the husband's car over with a baseball bat. And, sadly, there are still many, many cases of abused wives and abused children who have to hide out during the divorce to keep from being beaten or worse. In that type of a divorce, the Petitioner may seek out what are called Temporary Restraining Orders, or TROs. With a TRO, you file papers with the court saying that you, your children, and/or your property are in imminent danger because your spouse is a loony toon. The court issues much more complex restraining orders than the standard ones. These usually have terms like, "You will stay the hell away from your spouse and any visitation with your kids will be supervised. You've got to pay spousal support until this whole mess is over, and you've got to account to the court for every dime you spend, etc. etc. etc." They tend to be very, very specific and to be very harsh if you violate them. Step two, you have the restraining orders served on your spouse. He/she can either roll over and agree to it at that point, or he/she can hire Perry Mason and say that the restraining orders shouldn't apply. In that case there's a court hearing, each side presents their evidence, and the judge makes his or her ruling. Now, let's talk about a couple of dirty little secrets concerning restraining orders. First, some lawyers will seek restraining orders when they're totally unnecessary. You walk in to their offices with a simple, little case and they convince you that you MUST have restraining orders. Why do you think they'd do that? That's right: money, honey. The more paperwork that the lawyer does, the more money he or she will make off of the case. So, suppose your spouse is just an ordinary Joe Six-Pack who hasn't done anything wrong and a sheriff's deputy knocks on his door and hands him a wad of restraining orders suggesting that he's a wife abuser and saying that he can't see his kids. What's going to happen? First, he'll be very frightened. Then he'll get very, very angry and he'll go out and hire his own attorney. Now you've got a contested case, the lawyers are producing wheel barrow loads of paperwork, and they're sucking money out of your wallets like a brand new hoover vacuum cleaner. Dirty little secret number two: some clients will seek restraining orders when they're totally unnecessary. Why do you think they'd do that? Right again: money, honey. Although you see this more and more with men, it's classically involved women with kids, and this is how it works. Judges tend to bend WAY over backwards to protect women and kids in restraining order situations. Anyone who's been in family law for a while has had the unpleasant experience of seeing a party in a divorce situation get murdered by a lunatic spouse. It's something you don't ever forget. So, if a woman appears in court and alleges that hubby is beating her, the judge will most likely grant the restraining orders, even if there's a woeful lack of evidence. But, there's something else that happens in those restraining orders: the judge usually orders temporary spousal support. In other words, you're ordered to pay X number of dollars to your spouse each month until the divorce is granted. Hmmm . . . not good, but - hey - it's only six months, right? You can eat t.v. dinners and drink cheap beer for six months, if you have to. BUT . . . the court dockets are horribly over-crowded. That means that a hearing in a contested case can take MUCH longer to go to court than a simple little divorce where everyone agrees. And, if your spouse has a lawyer who's really good at it, delaying the divorce hearing can become an art form. You'll have a series of motions asking that the hearing be put off for one damned reason or another and all the time you're paying that, "temporary support." Dirty little secret number three: if you really, really need restraining orders, you should NEVER count on their working. If you're really married to a major league, out of control, abuser, REMEMBER that restraining orders are just pieces of paper. They have no magical properties that are going to protect you. Lawyers, as I said, tend to like restraining orders. They sell their clients on the idea that the judge will scare the hell out of the abuser and everything will be hunky dory. And, sometimes they're right. Sometimes the abuser really will stay away from his or her victim because they don't want to go the pokey. And, if you see them coming in time, it IS good to have the restraining orders so that you can call the cops and get the protection that you need. But . . . if you're dealing with a genuine abuser, do NOT bet your life on those pieces of paper protecting you. With some abusers, especially when it's gone on for a long time, the restraining orders only serve to enrage them and they become obsessed with, "getting," their spouse for doing that to them. If you have really been abused in your marriage, please seek out a qualified counselor to help you assess your situation. Please consider going in to a women's shelter for the duration of the divorce, or even leaving town and staying with relatives until it's over. If you don't have relatives who live far enough for you to be safe, ask the counselors at the local women's shelter about transferring you to another county. Whether you use the more complicated TROs or only have the standard restraining orders, try to remember that the key to getting through a divorce successfully lies in being a decent person. Treat your spouse the same way that you'd want to be treated. Don't let lawyers or relatives talk you in to getting in to unnecessary. Get it over and move on with your life. <>
About the author: Daniel Adair spent 16 years working in a family law office that processed between 25 and 50 divorces a week.. He is the author of, The California Divorce Course - How to Split the Sheets Without Losing Your Shirt," and has written extensively on the California divorce process. . |
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