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.
If your case involves a Monterey domestic violence restraining order, you may be able to ask the court to order the opposing party to pay for your attorney fees. In Monterey, and throughout California, the loser may have to pay for the winner’s attorney fees and court costs in a domestic violence restraining order case. This is authorized by California law, in Family Code section 6344. We will provide you with the exact language from the Family Code, and then break down the law for you below.
What is a Domestic Violence Restraining Order?
A domestic violence restraining order is an order from the court that restricts one person’s contact with another person, due to a history of certain physical or abusive behavior. When emotions escalate during, or right before, a divorce it is common for one party to request a domestic violence restraining order. Although it is not necessary for the parties to be married or going through a divorce. You can request a domestic violence restraining order against someone you that you lived with or had a romantic relationship with.
While it is not required for you to have an attorney in these cases, it is highly recommended especially if you are defending against a restraining order because of the serious consequences an order can have for you financially and legally.
The Law: California Family Code Section 6344
(a) After notice and a hearing, the court may issue an order for the payment of attorney’s fees and costs of the prevailing party.(b) In any action in which the petitioner is the prevailing party and cannot afford to pay for the attorney’s fees and costs, the court shall, if appropriate based on the parties’ respective abilities to pay, order that the respondent pay petitioner’s attorney’s fees and costs for commencing and maintaining the proceeding. Whether the respondent shall be ordered to pay attorney’s fees and costs for the prevailing petitioner, and what amount shall be paid, shall be determined based upon (1) the respective incomes and needs of the parties, and (2) any factors affecting the parties’ respective abilities to pay.
The Rule Simplified
To have the court award you with attorney fees and court costs, you must meet the following criteria:
- Be the party who requested the orders (the petitioner).
- Win your domestic violence restraining order case.
- You can’t afford the fees.
- The loser can afford to pay for your fees.
Let’s break that down a little further. 1) You must be the petitioner, meaning you must be the person who requested the domestic violence restraining order. 2) You must win your case–generally this means the court must have granted some or all of the orders that you requested, and granted none of the orders that the other party requested. 3) You must be unable to pay your own fees and costs. This test seems counterintuitive as you will have already paid your fees and costs by the time you go to a hearing. But if you had to take out loans or paid with credit cards, the court will consider this. 4) Finally, the court will consider the loser’s income and expenses to decide whether the loser can afford to pay the winner’s attorney fees.
Who Pays If I Win By Successfully Defending Against a False Domestic Violence Restraining Order Claim?
Family Code section 6344 does not mention awarding attorney fees for a successful defense against a domestic violence restraining order. Yet, the court may still do so. Surprisingly, that law only mentions the party who brings the case, the petitioner. In fact, the law is completely silent on whether the court can award fees to the other party, the respondent. Nevertheless, the court may award fees to a person who wins in such a case. To “win”, would require that the court dismiss the petitioner’s requested orders.
Less commonly, the court may award attorney fees for defending against a request for a domestic violence restraining order. But is more likely to do so in egregious cases where it appears that the petitioner filed the request for orders in retaliation, or that the claims are blatantly false. Here is an example of one case where the court granted attorney fees to the respondent.
How Can I Get Help With a Domestic Violence Restraining Order in Monterey County?
The Cornwall Family Law Office handles family law matters related to divorce including civil domestic violence restraining orders. We represent parties who need to be protected by restraining orders. In addition, we also represent parties who need to defend against domestic violence restraining order requests.
Contact us today for a confidential consultation.