TO many people, the New Year signifies a chance to have a fresh beginning. People dispose of old personal items and clean out the closet in order to make room for the new. The same line of thinking goes with getting rid of the spouse upon realizing over the holidays that your spouse is stuck in his or her old ways which you can neither change nor live with. You decide to take action and file a divorce.
Before you take any action, you need to think about your situation carefully. First, you should decide whether you should you move out of the family residence or not? If you and your spouse are communicating and have some type of respect left with one another, it may be more economical to continue residing in the same household until you resolve the issues in the divorce case. However, if your relationship is heated and riddled with conflict, then someone should to move out. If your spouse has threatened you, hurt you, or committed domestic violence, you may file a domestic violence temporary restraining order and request the court to order your spouse to move out of the house. In the same application, you may also request for custody, support, and attorney’s fees. If on the other hand you decide to be the one to move out, you should move somewhere close to your spouse if you have children to make it easier for both of you to co-parent with the children.
Second, you should decide whether your spouse is the type who will disclose all the financial assets or not after you file for divorce. Although the family code (family code 2100 et seq.) imposes a duty to disclose all material facts and information, spouses’ are not always forthcoming in disclosing completely all assets, debts, income and expenses specially after a divorce case is commenced. What sometimes happens is once a divorce case is commenced, assets are either not disclosed, disappears, or documents/ bank statements are not produced even with formal discovery. You should gather and make copies of all financial documents before filing the divorce.
Third, there is an automatic temporary restraining order (ATROS) in place once you file and serve your spouse with the divorce papers. The four standard mutual restraining orders are 1) removing their minor children from the state without the prior written consent of the other party or a court order. family code Section 2040(a)(1) 2) restraint from transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate without the other party’s written consent or court order; fam code 2040(a)(2) 3) restraint from 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 child for whom support may be orders. Fam C 2040(a)(3). 4) restraint from creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer without the other party’s written consent or court order. fam c 2040(a)(4). There are exceptions to the above restrictions. One exception is for property transfers in the usual course of business or for the necessities of life. Examples would be property transfers as part of your usual business operations or to pay for usual household living expenses. Another exception is payment of reasonable attorney’s fees. fam c. 2040(a)(2). If you need to do any transactions that may violate the ATROS, it is best to do it prior to filing and serving the divorce petition provided you do not breach your fiduciary duty to your spouse. If you are thinking of filing a divorce, it is best to consult an experienced family law attorney before taking any action.
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Attorney Kenneth Ursua Reyes is a Certified Family Law Specialist. He was President of the Philippine American Bar Association. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 747, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail [email protected] or visit our website at Kenreyeslaw.com.
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Please note that this article is not legal advice and is not intended as legal advice. The article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article does create any attorney client relationship between you and the Law Offices of Kenneth U. Reyes, P.C. This article is not a solicitation.
