When a client comes to my office for a divorce consultation, one of the first issues to be considered is whether the marriage can be saved. Generally, in order to try to save the marriage, both parties should be willing to go for marriage counseling. They must also be willing to consider how their own behavior has contributed to the failed marriage. If they want to exclusively blame their spouse and take the position that they are not willing to change, the prospects of saving the marriage are not very good.
In the cases where a spouse has decided that there is no hope of reconciliation and the marriage is truly over, a large concern is the other spouse taking all of the community property. In these types of cases, the timing of the divorce can be very important.
Mutual property restraining orders automatically take effect at the inception of a dissolution, legal separation or nullity proceeding. Thus, when the petitioner (person suing for divorce) files the petition, and the respondent (person being sued) is served with the petition and summons, they are both automatically restrained from transferring certain property. When the petition is signed, the petitioner acknowledges having read the restraining orders and understanding that the orders apply. The restraining orders are listed on the summons form itself.
So what exactly is restrained? With respect to property transfers and extraordinary expenditures, both parties are restrained 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 a court order — except in the usual course of business or for the necessities of life.”
Note that separate property is also contained in the restraining order. And what about property transfers that take place before the commencement of the dissolution action? Because every spouse has a fiduciary duty to the other spouse, each spouse remains accountable for any assets taken. The problem becomes getting the spouse to properly account for the property taken. A lot of people feel that it is better to take and then ask for permission or forgiveness later. That is why restraining orders and the timing of the divorce can be very important.
For questions regarding all of your family law needs, please call The Law Offices of Richard A. Marcus at 661-257-8877.