While in typical lawsuits, you need to be able to locate and serve the other party in order to initiate proceedings, there is another way to satisfy service for a divorce in California. If your spouse abandoned you and you cannot reasonably locate them, you can request for the court to complete service by publication in a newspaper in the area you believe your spouse is located. In order to do so, you must convince the court that you took considerable steps to locate your spouse. This could include hiring a process server, calling your spouse's family and friends, and running internet searches. Once the court approves your request, you must publish the petition and summons in a newspaper in the area you believe your spouse is located for four weeks. After 28 days, the 30-day clock for your spouse to respond begins, and if they don't respond within those 30 days, you can request a default divorce with the court. So, if your spouse has abandoned you and you are worried about the difficulty of getting a divorce, take some comfort in knowing it might be easier than you think!
Child custody and visitation orders can be so complicated to make decisions about. In addition to trying to make the best schedule for the children, the allocation of time can have a large effect on child support payments. In addition, when going through a separation, parents are often less willing to agree about basic decisions surrounding the child and over-analyze the other parent's choices. Thus, even after the court has already created a custody and visitation order, many co-parents continue to return to court to make alterations based on the other parent's bad behavior.
However, it is important to add some perspective before you take your ex to court to modify custody and visitation orders. There are many practical factors to consider before returning to court, because the less court involvement in a child's schedule, the better off that child will be.
1. Remember that your ex is a human being: While you may not like them anymore, they might not be a bad parent just because they messed up one time. Imagine if you were still in a relationship with them. Would you force them to spend less time with their child if they forgot to pack your kid's lunch one day? Would you not let watch your child overnight because they were 15 minutes late to pick up your kid from soccer practice? While these seem like giant screw ups from afar, the reality is that people make simple mistakes sometimes and it isn't always a practical idea to punish them for it.
2. Don't penalize your child for something your ex did: Maybe your ex did something really bad. Maybe it is worth reducing their parenting time. But at the same time, maybe your child really enjoys the time they spend with your ex, and reducing that time could be detrimental to them.
3. Court costs time and money: Even if you don't hire a lawyer, going to court means you have to take time off of work, hire childcare, and drive to the county courthouse for the day. If you do hire a lawyer, you will spend way too much money on phone calls about the little things your ex did wrong and negotiations with your ex about pick-ups and drop-offs. It just might not be worth all of the costs.
Ultimately, you will save a lot of headaches and money if you sit down and talk to your ex. Remember that they are human and are bound to make mistakes. Don't get too upset over small failures. If you can talk with your ex and figure something out, it will be much more beneficial to you in the long run. I know that many of you are reading this and are thinking that you can do that, but your ex is too stubborn. Re-evaluate that stance. Often, both parties are being equally stubborn, and even if your ex is stubborn, it still might be worth it to put up with a bad person on minor issues as compared to the cost and time of going to court.
Marriages are defined by two dates. First, the date of marriage and second, the date of separation. The date of separation can occur before the divorce petition is filed, and is defined as the date signifying a complete and final break in the marital relationship. So, with all of that information, you would assume that you would be free to do whatever you wanted after the date of separation, right? Wrong!
In California, Automatic Temporary Restraining Orders (ATROs) go into place as soon as you are served with a Summons. You can find the ATROs listed on the second page of your summons. This prevents you from doing a lot of things with your property and money until your divorce is finalized.
First, you cannot take any of your minor children outside of the state and you cannot apply for a new or replacement passport for any minor children, unless you have the other party's written permission or a court order.
Basically, the court doesn't want you travelling and attempting to flee the state with your children.
Second. you cannot alter any of your insurance policies held for the benefit of your kids or your spouse. Altering these policies would include cashing them, borrowing against them, canceling, transferring, disposing of, or changing the beneficiaries of the plan. This includes life, health, automobile, and disability insurance. So, while you would think it makes sense that you should remove your soon-to-be ex-spouse as your life insurance beneficiary, you are unable to do so until the divorce is finalized.
Third, you cannot transfer, encumber, hypothecate, conceal, or dispose of any property, real or personal, whether community, quasi-community, or separate, without the written consent of your spouse or a court order. This does not include the usual course of business or the necessities of life. This provision is broad and tricky. Essentially, the court wants to prevent you from hiding and destroying assets. But at the same time, the court is allowing you to use your property (i.e. money) in the usual course of business and for the necessities of life (food, shelter). So, you will want to avoid using any money on expensive purchases until the divorce is finalized, and even though you might want to sell the furniture that reminds you of your ex, you'll have to wait until the divorce is final.
Finally, you cannot create a nonprobate transfer or modify a nonprobate transfer without the written consent of the other party or a court order. You may revoke a nonprobate transfer or eliminate a right of survivorship, but you muse file notice of the change with the court and serve the other party. This section essentially deals with trusts. You cannot create a trust and put any property in it or modify an existing transfer of funds to a trust. Basically, this is another method for the court to prevent you from trying to hide assets and prevent your spouse from having access to property. You can revoke transfers and eliminate rights of surviviorship, but you just have to provide notice.
In conclusion, when you are in the middle of a divorce, it can be difficult to move on until the divorce is finalized, as you are prevented from changing many things before that date. Thus, it could be important for your mental health, well-being, and long-term finances to work hard and get your divorce finalized as quickly as possible, so that you'll know that your property belongs to you, you can do whatever you want with it, and you can finally move on with your life.
Maria E. Crabtree, Esq.