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CA state divorce law, division of marital assets, community and separate property division

Sherman Oaks, CA |

Are mutual property assets frozen during a divorce? My future ex wife and I are separated and plan to divorce. We own a house and are now renting the property.

I was told that if we divorced we wouldn't be able to sell the property because our mutual assets would be frozen. Can we continue to rent and still get a divorce?

Thanks for all the great info. I'm taking this to mean that we can still rent out our property and get a divorce as long as we both agree on everything. ATROS only has to do with the sale of the house. Correct?

Attorney Answers 3

Posted

marital assets are not frozen absent marital misconduct or threatened misconduct (ie a spouse says he/she is going to run off and close all bank accounts, etc.) and only if your future ex-wife petitions the Court for bank accounts and marital assets to be frozen.

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Posted

The assets (marital ["community"] and separate) aren't exactly "frozen." What does happen, however, is that upon filing of a Petition for Dissolution (as well as Legal Separation), what are known as "Automatic Temporary Restraining Orders ("ATROS") go into effect. They are binding as against the Petitioner upon filing of the Petition, and against the Respondent (the other spouse) when they are served. These orders provide as follows:
STANDARD FAMILY LAW RESTRAINING ORDERS
Starting immediately, you and your spouse or domestic partner are restrained from
1. Removing the minor child or children of the parties, if any, from the state without the prior written consent of the other party or an order of the court;
2. 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 minor child or children;
3. 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;
4. Creating a non-probate transfer or modifying a non-probate transfer in a manner that affects the disposition of property subject to the transfer, without the written consent of the other party or an order of the court. Before revocation of a non-probate transfer can take effect or a right of survivorship to property can be eliminated, notice of the change must be filed and served on the other party.
and
You must notify each other of any proposed extraordinary expenditures at least five business days prior to incurring these extraordinary expenditures and account to the court for all extraordinary expenditures made after these restraining orders are effective. However, you may use community property, quasi-community property, or your own separate property to pay an attorney to help you or to pay court costs.
As you can see, there are a variety of things neither you nor your spouse can do once the papers have been filed. Either of you can, however, ask the court for permission to do one of these things, or you can both always agree to do one of these acts (make sure it is in writing). So, to answer your question you and your spouse can likely agree to list and sell your home without court permission, and, even if one of you disagrees to the sale, the other one can go into court and ask for permission, provided there is a good reason for the sale. Good luck with this.

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Posted

Generally, as soon as you file and serve a Petition for Legal Dissolution the ATRO's ie Automatic Restraining Orders take effect which restrain either spouse from disposing or encumbering property unless there is a Court order or they consent in writing. With an important asset such as a house, it would be advisable to retain an attorney to draft a stipulation and order that specifies the details of how the house would be dealt with and any net proceeds allocated.

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