In past posts, we have discussed that the processes available to pursue divorce and the impact on the outcome of your case. Once a process has been selected, the next decision might be when he or she should file for divorce. A divorce is initiated when a party files a Petition for Dissolution of Marriage and has it properly served on the other party. When a petition is filed and served, there are several legal outcomes of which a couple should be aware when making their decisions.
First, once the Petition of Dissolution of Marriage is filed and served in California, certain protections are afforded to each party in the form of restraints. These are known as “Automatic Temporary Restraining Orders,” or “ATROS.” Specifically, both parties are legally restrained from:
- Removing the minor child or children from the state without prior written consent of the other party. Clients should take note that Las Vegas is in Nevada as some parts of Lake Tahoe.
- Cashing, borrowing against, canceling or changing the beneficiaries of any life, health, automobile, and disability insurance.
- Transferring, encumbering, concealing or disposing any property, whether community or separation, without the written consent of the other party or an order of the court, except in the usual course of business or for necessities of life (i.e. food, shelter, and other daily needs).
- Creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the transfer of property without the written consent of the other party.
Unless a petition is filed, there are no restraints. If a client is concerned that his or her spouse might dispose of assets, kidnap the children, change insurance policies, or any other violation of the four restraints above, the client should consider filing immediately.
Second, once a petition is filed, that filing date is arguably the last possible date for the “date of separation.” The date of separation is when one party determines the marriage is irretrievably broken and has no intention to reconcile. The date of separation is very important. It stops the community property clock. After this date, the couple’s earnings are no longer community property, but separate property. If John files for divorce on February 26th, the date he believes the marriage is over, and receives a stock grant the following day for future employment, the stock grant would be his separate property.
Third, the courts in California have the ability to award child support from the date of the filing of the petition for divorce. In other words, even though it might take a party time to have a child support case heard for the first time, the judge is not limited in ordering support from the date of the hearing. Instead, child support can be granted retroactively to the date of the petition. There are some specifications here, so clients should seek counsel.
Fourth, service of the petition (i.e. serving it on the other party) starts that infamous 6- months clock in California. The soonest a couple filing for divorce in California can have their status changed from married to divorce is 6-months and one-day from service of the petition. The couple can finalize their divorce agreement prior to that date, but have to wait before for their status to change. For example, John has Amy served with the petition on June 28, 2013. The soonest they can be divorced is December 29, 2013. However, John and Amy did not complete their divorce by that date. They will not be divorced until they do so, unless they request that their status be bifurcated (a topic outside the scope of this column).
More Information on a California Divorce
Finally, be ready. Divorce is not easy. The client needs to be as prepared as possible – emotionally, physically and spiritually. Often, filing for a divorce is a sign of war, especially if the other party is unaware. It often results in a race to hire lawyers and a court fight. Consider mediation! At Families First Mediation, we prepare the petition for the couple, review it in session with both parties and file it for them. Although only one person is the petitioner, this process allows both to be involved. We then serve the petition on the other spouse (respondent) by mail or in my office to take away the sting or embarrassment that might happen when served in public.
Reach out to us by phone or email if you are looking into getting a divorce in California and see how we can help you.