Protection During Divorce, and Automatic Temporary Restraining Orders
Are you thinking of filing for divorce in Monterey County? Are you worried about the immediate results of filing, and want to make sure you’re protected? Before you file, you should know about the Automatic Temporary Restraining Orders. These are rules that you have to obey from the time you file the papers until your divorce is final.
What are Automatic Temporary Restraining Orders?
California Family Code section 2040 talks about Automatic Temporary Restraining Orders. A restraining order is a legal instruction that you do, or don’t do, something. The orders are in place to protect both spouses, and kids, during a divorce. If you file for divorce, you agree to these orders, including:
- not transporting your kids out of state without permission;
- not spending money out of the usual,
- not changing insurance policies, and
- not doing certain “nonprobate” transfers.
The restraining orders also apply to a spouse served with divorce papers.
Let’s go through the orders, one by one:
• No taking kids out of California.
This order is meant to keep parents from taking kids, keeping the other parent from seeing them. However, it can also affect situations that may, at first glance, seem less serious. Are you planning to stay with your parents in Reno until you can find your own place? Planning on taking your kids on a vacation to Disney World in Orlando? Think twice before you file your divorce, because you cannot take the children out of state without the other parent’s permission during the divorce (which could last years). If the other parent won’t agree, you’ll need a court order before you can travel.
• No big spending, other than normal expenses.
The parties can’t spend out of the ordinary, even if the money is from “separate property.” The reason is to prevent either spouse from emptying the bank accounts. Necessities of life (food, housing, clothing, transportation, etc.) are fine, but have to be in the “usual course of business.” If you drive a Civic when papers are filed, buying a Mercedes after filing would not be in the “usual course of business.” Neither would draining any joint account.
Either party can pay their attorney fees.
• No changing insurance policies.
Does your life insurance list your spouse as the person who gets the benefits? What about medical coverage– do your kids and spouse get insurance from your employer’s policy? Does your car insurance cover your spouse? Once you file for divorce, you can’t make changes to the beneficiaries, and you can’t take your spouse or kids off of any policies.
• No changing estate plans.
This order means, if you “granted” your spouse any part of your estate (whether through a will, trust, etc.) before filing, you can’t change the plan. So, if you die during the divorce, your spouse will still inherit from you. There are some exceptions to this order, and ways to avoid the result. Contact a family law attorney to make sure that any changes you make are legal.
For more information about Automatic Temporary Restraining Orders, and how to protect yourself, your children, and your money, contact Cornwall Family Law.
“Divorce mediation is the most sane, efficient, and humane way to resolve the issues of divorce.”
Everyone has heard horror stories about divorces with spouses that are pitted against each other, dragging the divorce through court for years, and running up exorbitant legal bills to fight over every issue possible. Divorce mediation is the opposite of that horror story. In fact, you are unlikely to hear about mediated divorces because they are private, and low conflict. Couples that choose mediation do not have to air their private family and financial lives in public courtrooms. Instead, separating spouses get to maintain control and they work with their mediator to agree on the best way to resolve the issues related to dissolving their marriage. At our office, our mediators are all licensed attorneys who will guide the divorcing spouses through the settlement talks, prepare all legal agreements, and file all court documents needed to process the divorce from beginning to end.
What is divorce mediation?
Divorce mediation is the process of coming up with an agreement on how to dissolve your marriage, with the aid of a trained mediator. It allows you and your spouse to decide the terms of your divorce (instead of leaving it up to a judge to decide). It also allows you to complete your divorce without having to go to court. In mediation, you and your spouse meet with a neutral third party, the mediator. Usually, there are two or three sessions, lasting a few hours per session. With the mediator’s help, you work through the issues you need to resolve so the two of you can end your marriage quickly and cost-effectively. These issues can include divvying up property, child custody, child and spousal support, and any other topics you want.
What are the benefits of divorce mediation?
Unlike litigated divorces (those decided in court), mediation is confidential. Spouses are free to brainstorm creative solutions. And they don’t have the pressure from resolving their issues in a public court where others would be privy to their private information. Mediation also usually results in a quicker settlement than litigated divorce. In Monterey, there is a backlog of cases at court. Months might pass before the court hears your issues. And in litigation, time is money — mediation is usually much less expensive than going to court. Another added benefit is control and flexibility. Since both parties participate in reaching agreements, they are more likely to be satisfied by them, and to follow the agreements after the divorce is final.
What role does the mediator play?
A divorce mediator is neutral, and doesn’t represent either spouse. This means the mediator cannot give legal advice to either party. Instead, the mediator assists the parties to come to solutions that the parties both agree to. Sometimes, the parties can reach an agreement quickly. Sometimes, they take longer. When issues are more heated or difficult, the mediator can step in to provide guidance, reality checks, and creative suggestions.
At Cornwall Family Law Office, our mediators are all licensed attorneys with experience in family law in Monterey County. So, in addition to mediating, we are able to educate you on the law, give you realistic expectations of what will happen if you do go to court, prepare all of the necessary documents to finalize your divorce, and ensure that everything is legally sound.
We don’t get along well – how can we possibly mediate?
Many mediating couples are amicable and work well in mediation. But there are also many couples who are very emotional about the divorce. It is not uncommon to think that they can’t negotiate face to face. Our mediators are trained to assist couples who have high emotions but who still would like to work things out peacefully. People do calm down and become effective mediation participants when they see that the process can work without adding to the high emotional and financial cost of divorce.
What if we can’t agree on everything?
We have a high success rate with helping couples resolve their divorce through mediation. Although it is rare, some couples may agree on all but one or two issues. In that case, the work they put into mediation is seldom wasted. We prepare an agreement covering all of the settled issues. Then the parties can either litigate the remaining issues in court, or take time to think about them and return to mediation later.
What role do I play?
Divorce mediation is voluntary, and will only work if you, your spouse, and the mediator agree to continue. Prepare to come to the mediation with an idea of what you want, but be willing to compromise. Mediation is only successful if you both put your differences aside, refrain from name-calling, and focus on moving forward.
For more information about initiating divorce mediation, or to schedule a consultation, contact Cornwall Family Law.
California allows some couples to get a “quickie” divorce using a method called “summary dissolution.” (A regular divorce is referred to as a “dissolution” in California.) The summary dissolution procedure is designed for couples who have not been married for long, and who do not have complicated issues to sort out in the divorce. You must meet certain criteria to use this procedure. But, keep in mind, even if you qualify to use a summary dissolution, you can still choose to go the traditional route. Depending on your situation, a traditional dissolution may offer you advantages that the summary dissolution cannot. If you need help deciding which procedure is best for you, contact our office. We handle both quick divorces (summary dissolutions) and traditional divorces (just a dissolution), and can advise you on the pros and cons for each.
Am I Eligible To Divorce Using a Summary Dissolution?
In a nutshell, you can use a summary dissolution if you and your spouse have been married for 5 years or less, do not have kids together, and don’t have any big assets, like real estate. The exact criteria for summary dissolution is set by law.
You can get a quicker divorce, using summary dissolution, if all of the following statements are true:
- You and your spouse both agree to use a summary dissolution and agree on how to divide your property.
- You or your spouse lived in California for the last 6 months and in Monterey County for the last 3 months.
- You and your spouse have no children under the age of 18 together, and the wife is not pregnant.
- You and your spouse do not have any interest in property anywhere (other than a lease of no more than a year for the property you live in.)
- Together, your community debt is less than $6,000 (not counting car loans).
- The value of all of your community property (other than your cars) is $40,000, or less.
- Neither of you has more than $40,000 worth of separate property (not counting cars).
Are you still interested in a summary dissolution?
If you met the above criteria, you can use the Summary procedure. Your attorney can prepare and file the necessary documents with the court.
Is There A Downside to Filing a Summary Dissolution?
One potential downside to the summary dissolution is that one spouse may be able to back out of the divorce. After your attorney files your divorce paperwork with the court, either spouse can revoke the Summary proceeding anytime during the next 6 months, just by filing a simple form. If that happens, you may have to start over from scratch and file for divorce using the traditional summary procedure. In that case, your divorce would end up taking longer than if you had just filed for a traditional divorce from the start.
The ability of one spouse to revoke the summary dissolution, makes the process more risky. Before deciding to use a summary dissolution, you should carefully consider whether your spouse might change his or her mind in the next six months.
Don’t rush legal decisions. Even if you can use the summary dissolution procedure, make sure that you have plenty of time to make important decisions, negotiate the agreement with your spouse, and file the required paperwork. Divorce is too important to rush, and mistakes made now may be difficult to fix later. In addition, if your spouse may change his or her mind during the next six months, a traditional divorce may be a better option for you.
When one spouse is in the military (or when both are), additional legal issues come into play. Special rules apply in a military divorce regarding where to file a military divorce, how child and spousal support is calculated, how child custody is determined. In addition, military benefits must be considered such as military retirement pension and post-divorce health insurance issues. Service member spouses and civilian spouses alike should take the time to learn about the special issues involved in military divorce. It is essential that military members, and their civilian spouses, hire an attorney who is knowledgeable about the special issues raised in a military divorce.
FILING FOR A MILITARY DIVORCE
Even the first step of filing for divorce with the court is different in a military divorce. In most cases, you must file a military divorce either in the state where the military member is legally domiciled or a resident or in a state that both spouses agree upon.
After filing for a divorce, the next step is to deliver the divorce paperwork to the other spouse, known as “serving” the other spouse. When the other spouse is a military member that is deployed or permanently stationed overseas, special laws apply that can delay the process. This can make a military divorce take longer than a civilian divorce.
CHILD AND SPOUSAL SUPPORT
Child support and spousal support issues are also effected by laws that apply to military divorces only. For example, under federal law, a military member cannot be made to pay child and spousal support that is more than 60 percent of the member’s pay and allowances. Military members who do not comply with a court order to pay child or spousal support can face harsher consequences than a civilian. The Department of Defense requires military members to comply with support, custody, and visitation orders. Punishment for failing to do so can be as serious as a separation from military service.
CHILD CUSTODY & VISITATION
Child custody and visitation plans can be effected by the military member’s frequent moves and the possibility of deployment. A good custody and visitation plan must should account for these issues in a military divorce.
The military gives service members many benefits that can be treated as community property in California, and divided in a divorce. But again, special rules may control how the military benefits may be apportioned during divorce.
YOU WILL NEED LEGAL HELP
For all of the above reasons, a military divorce is more complex than a civilian divorce. If you are a military service member, or civilian spouse, considering divorce, you absolutely shouldn’t negotiate your divorce or sign a settlement agreement without at least consulting a lawyer who is knowledgeable about military divorce. Attorney Breanna Cornwall represents clients in military divorce in Monterey County. She can guide you through the military divorce process in the most efficient and stress-free manner possible. If you would like to schedule an initial consultation regarding your military divorce, contact the Cornwall Family Law Office.
Ten Steps to Divorce in Monterey
If you live in Monterey County, or plan to file for a divorce in Monterey County, we’ve prepared a list for you.
- One: Be Prepared
- Two: File for Divorce with the Court
- Three: Serve the Necessary Paperwork
- Four: Respond to the Filing
- Five: Deal with Any Temporary Orders
- Six: Disclose Financial Information
- Seven: Discovery of Basic Facts
- Eight: Settle on Divorce Terms
- Nine: Possibly Go to Trial
- Ten: Tie Up Loose Ends After Divorce
These steps only provide a basic roadmap to getting a divorce in Monterey, California. A knowledgeable divorce attorney can help you determine the best course of action, every step of the way.
Step One: Be Prepared
Before you file for a divorce, consider whether or not you are emotionally and prepared for the changes that will arise as a result of the divorce.
The saying “never make a big decision when you are emotional” holds a lot of truth. But it may be easier said than done in a divorce. A divorce is often a very emotional process. Wading through all of the memories and emotions surrounding a divorce can take a toll on you. No matter how prepared you may believe that you are emotionally, the fact is, you and your spouse may have difficulty separating logic from emotion in a legal setting. This is one of the main reasons why it can be so helpful to have a skilled divorce attorney on your side—your attorney can advise you on the best decisions to make without being effected by emotion.
There are some things that you can do to be the best partner to your legal team. Manage your stress by turning to your support system and other outlets for letting off steam. For some people that is venting to a close friend or relative, for others it may be hitting the gym regularly. Making regular efforts to let off steam in a healthy way will help you stay level-headed when making big decisions and will make it much easier to deal with the stress of divorce. If you allow your frustrations with a situation to guide you in court, chances are that you will end up hurting yourself and others, which can damage family ties, complicate custody arrangements, and make it more difficult to adequate address the physical assets bound up in the marriage.
Legal Preparations – Before You Meet With Your Attorney
In order to help your attorney to fully understand the nature of your divorce and what it will entail, gather any documentation that you believe might be pertinent to the case. You’ll want to make copies of any important information related to your financial accounts, debts, insurance policies, and real estate assets. On a personal level, you may also want to separate out individual documents like your passport, Social Security information, and birth certificate. This is also a wise time to consider changing your passwords and security questions on your personal accounts.
Step Two: File Your Divorce Paperwork with the Monterey County Superior Court
You can start a legal divorce by filing a “Petition for Dissolution” with the court. This initial divorce filing sets the tone for the divorce by letting the court, and your spouse, know what you will seek in the divorce including assets, child custody, child support, and spousal support. It is more difficult to amend a petition to the courts than it is to get it right the first time, taking all factors into account.
What Should I Include in My Petition?
Within your petition, you’ll want to address five primary topics:
- Arrangements for any children in the family, including plans for support, child custody, and rights to visit;
- Monetary support between spouses;
- How will your property be divided between you and your spouse;
- Who will be responsible for the debts;
- Who will pay for the legal fees.
Can I File for Divorce in Monterey?
To file for a divorce in Monterey County court, you MUST meet California’s residency requirements. That means either you or your spouse must have lived in:
California for the last 6 months, AND
Monterey county for the last 3 months.
The family law division of the Monterey Superior Court is located in Monterey, California. Anyone who lives in Monterey county and wants to file his or her divorce case locally, must file with the Monterey County Court. This includes residents of the cities of Monterey, Salinas, Seaside, Carmel, Pacific Grove, Del Rey Oaks, Sand City, and Marina.
Can I Still File For Divorce in Monterey If One Spouse is In The Military?
The Monterey Courts handle a large number of military divorces. This is due to the large veteran and active duty military population stationed here at the Naval Post Graduate School (NPS) and the Defense Language Institute (DLI). Military divorces are often more complicated legally because they involve both federal and California laws. In addition, military divorces often involve special assets and benefits such as the member’s military retirement pension, GI bill, medical care, and the death benefit. For this reason, it is important to work with an attorney who understands the ins and outs of a military divorce.
Just one of the special issues encountered in a military divorce is “where do I file for divorce”? Military couples that live in Monterey County may still be residents of other states. We also frequently see couples where one spouse is living in Monterey, and the other has already moved out to another state in anticipation of the next duty station.
For a military couple, the divorce can be filed in Monterey county as long as one of the three criteria below applies:
- The spouse who is filing for the divorce lives in Monterey county;
- The active duty spouse is formally stationed in Monterey; OR
- The active duty spouse is able to claim legal residence in Monterey County.
Step Three: Serve the Necessary Paperwork
Next comes the part that has been dramatized in so many films and television shows . . . you serving the paperwork to your spouse. Contrary to how many of these films present things, you should not attempt to serve these papers yourself. Instead, any adult, who is not a party in the case, can “serve” the paperwork. Your chosen server simply needs to hand the paperwork to your spouse. Some people choose to use a relative or friend. Others use professional process servers. To make the process easier on both parties, have appropriate conversations with your spouse about the possibility of divorce before before you serve them with the divorce.
There are two main parts to the paperwork that you will give to your spouse—the summons and the petition. The summons is a notice from the court. It states that you are requesting a divorce through the courts and notifies them of when and where they need to appear in court. The summons also includes a standard set of restraining orders and a summary of rights for all parties involved. The petition is the document you submitted to the court that states your desire to end the marriage, and tells the court what issues will need to be decided (child custody, spousal support, dividing property etc.).
Once your spouse has received the divorce filings, you’ll need to give the court proof that you properly served the documents on your spouse.
Step Four: Respond to the Divorce Filing
Once your spouse has received the paperwork for the divorce, he or she has 30 days to file a “response” with the Monterey Family Court.
If you are the one being served with divorce papers, carefully review all of the orders contained in paperwork, as they apply to you as soon as you receive them. You’ll also want to make note of the date that you were served, as you have 30 days to submit your response. If you do not file your response within 30 days, the other party may be able to move forward without your response.
Note that in California, only one party is required to file for divorce, even if the other doesn’t agree. Simply ignoring the matter won’t make it go away, so make sure to protect your rights legally by filing a timely response.
Step Five: Deal with Any Temporary Orders
When you file your divorce petition, the court automatically issues a routine set of restraining orders. These orders are automatic temporary restraining orders or ATROs. The ATROs restrict the filing party’s actions as soon as he or she files the petition. The ATROs restrict the other spouse’s actions as soon as you serve him or her with the divorce paperwork. These temporary orders keep the parties in the divorce from destroying or attempting to hide any assets that are held in common or separately. If either party violates the automatic temporary restraining orders, the court can issue some serious penalties.
Additional orders that might apply to a divorce proceeding include orders for temporary spousal support, orders attorney fees, child custody or child support orders, other kinds of restraining orders, and any other judgment that might be required to keep property and people safe while the divorce is finalized.
Parties can request temporary orders at any point in the divorce proceedings. They do not expire unless they are overwritten by other orders, including the final judgment in the case.
Step Six: Disclose Financial Information
As a part of dividing up marital property, you’ll need to know how much things are worth, who you believe is responsible for it, and a timeline of when that asset or debt came into the marriage. The court requires that the parties exchange certain financial information through the use of financial disclosures. These financial disclosures include a list of all the assets and debts held by the parties in a divorce separately and in common, and a list of expected income and expenses.
This step can require a mountain of paperwork! Determining value of property that may be sentimental can be time-consuming and emotionally exhausting. Additionally, you’ll need to have documentation from any income, your taxes, deeds, titles, statements for accounts, and more, all of which must be given within a specific format to the courts.
Basically, the court expects both parties to disclose all necessary information so that a fair and equitable settlement can be made. Unfortunately, there is no way to skip this step, even if the partners have come to a full agreement over assets, aren’t seeking support, or don’t have more than a nickel to their name.
Step Seven: Discovery of Basic Facts
“Discovery” is the formal process used in a legal case to obtain important information about your case from other people. To ensure that everyone is prepared for trial, you must complete all discovery by 60 days before trial.
There are three common areas of discovery that you may want to consider:
- Requests for Documents or Subpoenas: This is a useful way to access records and other important files that are relevant to the case.
- Requests for Interrogatories and/or Admissions: An interrogatory is basically a set of questions posed between parties that are sworn to be truthful, while a request for admission requires that your spouse either accepts or denies the validity of a statement given.
- Depositions: Unlike an interrogatory, which is done through a written statement, a deposition is verbal testimony transcribed by a court reporter.
You do not have to seek discovery in a divorce proceeding. But conducting discovery can give you a fuller picture of the assets and legal issues that the judge should address. Failure of a party to respond to discovery can bring about sanctions from the judge, as well, which serves as a motivator for everyone involved to comply.
Step Eight: Attempt to Settle on Divorce Terms
It is usually best for all parties to agree to the terms of the divorce in a settlement agreement. If both parties agree, you can sign off on your divorce terms in an agreement called a “marital settlement agreement”. Entering into a settlement agreement allows both parties to have input about the terms of their divorce. Once both parties sign off on the settlement agreement, they can give it to the judge for approval. Typically, judges approve settlement agreements. But, the court does not have to agree to terms related to child custody or support.
You should address the following issues in your marital settlement agreement include:
- Custody and visitation arrangements
- Child and spousal support
- Division of property, assets, and debts
- Legal fees
In some cases, you can the judge may meet with the parties and their counsel to encourage settlement.
Step Nine: Possibly Go to Trial
If the parties cannot settle on terms, then the court will decide any outstanding financial and child issues at a trial. If your divorce goes to trial, the judge will review all previous orders and documents submitted to the court. You should bring all evidence and supporting documentation with you to trial. The judge might ask you, or other witnesses brought in, for more information. The judge will announce his or her decisions verbally, and also make them in writing.
Step Ten: Tie Up Loose Ends After Divorce
Even after the court finalizes the divorce, you may have more work to do. You may still need to transfer titles for your vehicles, change your insurance plans and beneficiaries, and close joint accounts.
Because the process can be a lengthy and emotionally exhausting ordeal for everyone involved, it is important to have the right kind of legal partner on your side. By enlisting the aid of a qualified and knowledgeable divorce attorney, you can avoid some of the most common obstacles encountered by those seeking a divorce in California, saving your sanity and your assets in the process.