The law has several "orders" that go into effect as soon as you file for divorce.
Although you're not divorced immediately after you file the initial petition with the Court, a lot of rules and restrictions go into effect that limit what you can do. These restrictions have to do mostly with property and custody.
Child Custody Orders
1. "No removing the minor children of the parties from the state or applying for a new or replacement passport for those minor children without the prior written consent of the other party or an order of the court."
This one is pretty self-explanatory. You cannot travel to another state or country with your children pending divorce unless your ex agrees. In fact, many airlines require a notarized letter of consent from a parent if you travel with your children giving explicit permission for you to travel (including dates and location) some airlines enforce this with domestic/intrastate travel as well, so it’s good to look into what you might need first. In any case, you’ll need an agreement in writing in order to travel with your children. It’s also good practice to provide your spouse with your flight and/or travel itinerary, and a list of places and contact information where you’ll be staying and dates. You should do this in writing or, even better, by email so you have a record that you provided it.
Overnight trips within the state: It’s a good idea to clear any overnight travel with your spouse first, even if it is within the state.
You and your spouse will now both need to agree to apply for any new or replacement passports.
- Abduction: If you’re worried about your spouse abducting your children, or if your spouse is worried about you, it’s probably a good idea to seek the advice of an attorney. There are temporary court orders you can get for protection (“child abduction orders”) that can, among other things, order one or both parents to hold a bond in the US (sum of money that they forfeit if they travel out of the country with the child, which would give the other parent means to pursue legal actions to get them back; holding the child’s passport (often by the other parent's attorney, but you can designate a trusted mutual friend or family member), or even buying you a round-trip ticket before any planned travel in case you need to physically go to get them. There are also informal things you can do together without an attorney if it helps you feel more secure, though. One example of this is to open a safe deposit boxes that requires both of you to be present to access: you can use this to hold your child’s passport, birth certificate, etc.
- Medical decisions: Although it’s not included in the actual language of the order, you shouldn’t make major medical decisions for your children without checking in with your spouse (except for medically necessary treatments in the case of an emergency).
2. "(No) 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 children."
This one is also pretty self-explanatory. Even though you and your spouse are separating, your spouse is still the beneficiary of your insurance (and vice versa); you’re obligated to keep this the same during the divorce process. If you and your spouse agree to change it, you’ll need to have a signed consent form.
Qualifying event: One thing to note about health insurance: losing your insurance coverage as a result of a divorce is considered to be a “qualifying event”, and you should be able to enroll in Covered California outside of the open enrollment period. However, if you need affordable health insurance you should contact them at 1-800-300-1506 to make sure you don’t miss any deadlines and avoid a gap in coverage.
3. "(No) transferring, encumbring, 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."
This one is a little more subjective in the interpretation of the phrase “usual course of business”.
Basically, the “usual course of business” just means how your usual spending habits have been during your marriage. Until you get divorced, you still have a duty (a.k.a. “fiduciary duty”) to your spouse to maintain your community finances as they were during marriage. This duty remains until property is separated. If you do want to do something outside of the “normal course of business”, you’ll need a signed agreement with your spouse (often in the forms of an order filed with the court).
This usually applies in cases where one spouse acts in "bad faith", such as emptying out a joint account into a separate one. If you used a joint account to pay for groceries or rent, you can continue to do so as long as you're not spending more than you typically did before your separation.
4. "(No) 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 an order of the court. Before revocation of a nonprobate transfer can take effect or a right of survivorship to property can be eliminated, notice of the change must be filed and served on the other party."
Courts like to complicate things using broad-stroke applications of terms like “probate”. For most people, this will mean that you cannot remove your spouse as the beneficiary of your life insurance or retirement (unless he or she has previously waived their rights in that regard and you have a signed agreement or letter confirming), change the title on property, or write your spouse out of your will.
5. Additional Precaution: "You must notify each other of any proposed extraordinary expenditures at least five 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 an attorney to help you or to pay court costs."
If you need to hire an attorney, or have expenditures that are absolutely necessary (like medical bills), the Court usually approves the use of community funds for this. Just keep in mind that there’s a chance the Court (or your spouse) might ask you to deduct this spending from your share of the final property division (called “reallocation”); again, this is subjective and depends on the details of your case.
When do these rules take effect?
If you’re filing the forms initiating your divorce or legal separation (i.e., you’re the “Petitioner”), these rules take effect on you immediately after you file. However, they don’t take effect on the other party (the “Respondent”) until the “effective date of service”. This will be either the day that your spouse was personally served by a process server or another agent (other than you) who’s over the age of 18 and a resident of California, or the date that your spouse signs a “Notice and Acknowledgment of Receipt” if you serve them by mail.
If you selected our “Get It Done” plan, we first try to serve your spouse by mail. If your spouse doesn’t sign and return the enclosed form, service is not effective and you might want to consider personal service. You can contact us and we can either arrange for a professional process server (at cost, which depends on how difficult your spouse is to serve), or give you instructions to have a friend or family member serve them.
However, best practice is to just take it upon yourself to follow these rules when you and your spouse separate. If your case does go to court, most Judges appreciate it when people take the high road.
These rules can sometimes be complicated, and violating them can have serious financial consequences. If you violate the orders related to chid custody, the court can actually charge you criminally and sentence you to jail time.
It’s extremely important that you make sure that you are complying with these rules. If you have any questions that are specific to your case (for example, if you want to take your children on vacation but your spouse won’t agree, or if you want to buy a new house, or take an early advance from your retirement), you may want to consult with an attorney. You can contact us using the chat feature in the lower right-hand corner to be connected to one of the limited-scope attorneys in our network.
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