Control of Assets After Filing for Divorce
Automatic Temporary Restraining Orders
Once the Petition for Divorce has been filed and served, there are automatic restraining orders that go into place immediately. Divorce lawyers call these “ATROS.” These orders enjoin either party from moving assets, including cash, stocks, retirement accounts, etc.; they also enjoin either spouse from canceling or changing any health insurance plans, auto insurance plans, and life insurance plans without the express consent of the other spouse or an order from the court.
It is very important that you understand the ATROS and abide by them. Violation of the ATROS could result in sanctions and attorney’s fee orders against you.
Fiduciary Duties During Divorce
Each spouse in a Divorce proceeding owes the same fiduciary duty to the other spouse as he or she would owe to a business partner. The marital assets must be regarded as business assets and managed and cared for as such. If the parties own a house together, the house must continue to be maintained by the party living in the house. If the parties own a business together, the business must continue to be run with as much responsibility and due care as it was during the marriage. In short, damage to a marital asset due to the neglect of one spouse amounts to a breach of that spouse’s fiduciary duty to the community and to the other spouse.
Breach of fiduciary duty is taken very seriously by California divorce courts. In egregious cases, the court may award an entire asset to the non-offending spouse in a case of breach of fiduciary duty.
If you are not sure what you can and cannot do once a divorce has been filed, call now for a consultation with an expert divorce attorney at GYL.
Financial Disclosure Requirements in Divorce Cases
Full Disclosure Requirement
California has very strict requirements when it comes to financial disclosures between parties in a divorce case. Within 45 days of filing a petition for divorce, each party is required to disclose 100% of all assets and debts, as of the date of disclosure, and to serve the other party with a Preliminary Declaration of Disclosure, along with the financial disclosure documents themselves.
Financial Disclosure Documents
The two most common financial disclosure forms used as part of the divorce process in California are the Schedule of Assets and Debts (SAD), and the Income and Expense Declaration (IED). The Schedule of Assets and Debts is a full list of all assets and all debts, including the date of acquisition, the fair market value, and any money owed on an asset. The Income and Expense Declaration is a snapshot of each party’s monthly income and monthly expenses. This document will include information related to earnings, expenses, educational background as well as asset holdings such as a bank account balance.
Full financial disclosure is perhaps the most important aspect of the preparation of a divorce case. Both parties should have everything on the table when negotiating the terms of settlement. If one party discovers that the opposing party has willfully failed to disclose assets or income, this can have devastating consequences on the non-disclosing party, including sanctions, attorney’s fees and the setting aside of a judgment of dissolution.
There is a famous case in California of a woman who failed to disclose a winning lottery ticket of over a million dollars. She held onto the ticket until the divorce was final and then cashed it in. When her ex-husband discovered that this lottery ticket was purchased during the marriage and thus considered community property, he filed a motion with the court. The court awarded the ex-husband 100% of the lottery winnings as a sanction against the wife!
If you have questions about California’s strict laws regarding financial disclosures in divorce cases, call now to speak with an experienced divorce attorney on our team. GYL can be reached at (858) 371-5569 or via our online contact form.
Short-Term vs. Long-Term Marriages
In general, long-term marriages often create more complex divorces, as there are more assets, debts, shared properties, insurance issues, and various other finances to consider. Additionally, in California family courts, long-terms marriages (marriages lasting more than 10 years), and short-term marriages (marriages lasting less than 10 years) are treated differently when it comes to the duration of court-ordered spousal support. Specifically, in short-term marriages, the court determines the amount of spousal support that will be paid for a specific period of time (typically half the duration of the marriage); whereas in marriages of long duration, the court retains indefinite jurisdiction over the divorce, giving it the ability to reevaluate and modify an existing order when it sees fit to do so.
Divorce Involving Minor Children
Divorces involving minor children must be treated with care and with the presence of mind that children know what is going on and often blame themselves for the separation of their parents. It is very important to insulate children of divorce from the emotional turmoil of the court process as much as possible. Litigation regarding the custody of minor children is hands-down one of the toughest aspects of a family law attorney’s job, and often the most painful part of the divorce process for the parents.
If we could give one piece of advice to our clients going through a divorce with children, it would be to work together as parents to make the process as easy on the children as possible, despite any personal issues you may have with one another. We can help. Call (858) 371-5569.
High Asset vs. Low Asset Divorce
Low asset divorces are generally much simpler to resolve considering that not much is at stake from a financial perspective—of course, this is all subjective. Often, it is better to cut your losses than to pay an attorney more than the fight is worth.
On the other hand, the higher the value of the marital estate, the more there is at stake. Considering the respective claims of the parties, sometimes it makes sense to spend more money and effort fighting for a particular interest. That is not to say that high asset cases don’t ever settle—just that at times it makes sense from a legal and financial perspective that a particular claim should not be conceded for the sake of settlement.
You always want to balance the amount you will pay to fight for a claim against the potential outcomes–win, lose or draw. A good divorce attorney will be able to give you realistic expectations and advise against throwing good money at a losing battle.
A divorce involving one or both spouses serving on active duty presents many unique challenges and requires a creative, problem-solving approach—especially in cases involving the custody of minor children.
Divorcing military families require co-parenting plans that must consider abnormal work schedules, frequent moves, and deployments. There are also special rules for military divorces regarding health insurance benefits, division of retirement benefits, and procedures for case progress when one party to the action is deployed.
We represent military families (both servicemembers and spouses) at an increasingly high rate considering the concentrated military presence in San Diego County.
We offer a discounted hourly rate and flat-fee services to military members and spouses.
With the recent evolvement of civil rights and protection of the right to marry for all California residents, gay divorces have come on to the scene in the past decade. As the federal government continues to afford equal access to martial rights and benefits, gay divorces in California are becoming more and more similar to traditional divorces with respect to property and financial support rights.
As this area of law develops, the California legislature will have to deal with more complex parental rights issues related to gay divorce because our statutory schema related to resolving parental relationships is largely catered to the traditional marital relationship.
Contact GYL for a Consultation in Carlsbad
The complexity of a divorce case depends not only on the particular issues that need to be addressed in the divorce, but also on the willingness of the parties and attorneys involved to be reasonable and open to compromise.
If your marriage has come to an end and you would like to formally dissolve it through divorce, our team can help. Led by two certified family law specialists, we provide skilled expertise in all matters concerning divorce.