The decision to file will also trigger a landslide of consequences that impact life on almost every level. One of the biggest areas of deliberation seems to be timing.
Three of the most common questions in client consultations or in my workshop are:
“Is there any benefit to filing first?”
“Can’t I just wait and see what my husband does?“
“Why should I be the one that spends the money to file for “his” divorce?”
Spoiler alert: I am not licensed to give legal advice nor is this column intended as legal advice. Filing for divorce is a legal action.
However, I will encourage people to see a lawyer or gather information about the filing process if I see a pattern of dangerous behavior or dangerous circumstances in a case.
Danger to me means 1) physical or emotional danger or 2) financial danger, where a spouse is misusing funds, has a gambling or drug habit, or if they have left with an affair partner and are now beginning to liquidate or conceal assets.
When a spouse’s actions have financial implications, it’s time to seek appropriate counsel to learn the facts about filing for divorce. Filing in the State of California includes protections under the law also known as Automatic Temporary Restraining Orders (ATROs).
ATROs restrain both parties from:
- Removing a minor child of the parties from the state.
- Transferring, encumbering, concealing or disposing of any property, real or personal, except in the usual course of business or for the necessities of life.
- Cashing in, canceling, disposing of or changing the coverage or beneficiaries of any life, health, automobile, and disability insurance.
- Creating or modifying a nonprobate transfer that affects the disposition of property.
In California, ATROs are listed on the back of the Summons of a Petition for Dissolution. They become effective upon the petitioner when he or she files and upon the respondent upon service and remain in effect until the time the final judgment is signed by the court.
A party is permitted to use any property to pay reasonable attorney’s fees and costs in order to retain legal counsel, as well as encumber his or her community interest in community real property to secure legal counsel.
You can read the full code, and see a copy of the summons, here: California Summons FL-110.
Common examples of things you can not do are:
- Take out a loan against community property.
- Gift community property. See my blog, “When Is It Not Okay to Give Your Paramour a Ferrari?”
- Pledge property as security or collateral for a debt.
- Close a joint checking account and transfer the money into your own separate account.
- Remove items from your safe deposit box, or cash from your safe, and give them to a third party to hold for you.
- Drop your spouse from your auto policy (even though they live with someone new now and do not speak to you).
Are you certain that you understand, and can follow, your spouse’s money trail? And that you have adequate protection under the law to protect your financial future?
A CDFA will be able to listen to the facts of your case, analyze your financial information, and help you evaluate your situation so that you can take the steps necessary to protect your assets.