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Four Automatic Protections You Receive After Serving a Divorce Petition in California


There is a saying common among people who have been divorced along the lines of, “you don’t really know someone until the divorce starts.” Not every divorce is contentious – and many people learn the capacity for selfish decisions on the part of their spouse long before the divorce is commenced – but it is the case that the relational atmosphere between two married people can change drastically for the worse at the start of a divorce.

The motive of self-interest and protection is clear, but it does not excuse the behavior. And, in many cases, the behavior may be illegal. In fact, under California Family Code 2040, there are four separate legal protections that both parties obtain when a divorce is commenced (they apply to the petitioner who files the divorce as soon as the petition is filed and apply to the respondent as soon as the divorce papers are served on him or her).

Child Move-Away and Passport Restrictions

Both parties are restrained from taking a minor child of the parties outside of the state, or for applying for a new or replacement passport for a minor child, unless consent is provided by the other parent.

Transferring or Disposing of Any Property

The parties are prohibited from, in the words of California Family Code 2040(a)(2), “transferring, encumbering, 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.”

What qualifies as the “usual course of business” or “the necessities of life” is not entirely well-defined, but the point is neither party should make unusual transfers of any property without the other party’s written consent.

That said, both parties are allowed to spend funds to obtain the representation of an attorney without the other party’s consent, but a record should be kept of this.

Modifying Family Insurance Coverage

The parties should not take steps which involve “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 or children for whom support may be ordered.”

Making or Modifying a Nonprobate Transfer

Finally, while you are permitted to take steps to do things like changing your will during divorce proceedings, both parties are restrained from making nonprobate transfers of property, or modifying existing nonprobate transfers of property, without the other party’s consent.

For questions on how these restrictions apply to you, and what to do if the other party violates these restrictions, contact an experienced California family law attorney.

Get Answers to Your California Family Law Questions

At Kearney | Baker in Pasadena, we represent spouses through all aspects of the dissolution/divorce process and also serve as mediators. Our partners, Brian A. Baker and Gary W. Kearney, are both Family Law Specialists, as certified by the California State Bar. To schedule a consultation regarding any questions about family law in California, contact one of the family law attorneys at Kearney | Baker today at 626-768-2945.

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