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Divorce and Estate Planning

Posted by Andrew Gilliland | Jan 13, 2023 | 0 Comments

When a California Court takes jurisdiction over divorce proceedings, the Automatic Temporary Restraining Orders (ATROs) delineated in California Family Code Section 2040 remain in place until a judgment is entered.  Essentially, the ATROs provide a matrix for handling assets during the divorce consisting of actions that are:

(1) prohibited without a court order;

(2) prohibited without consent of the other spouse;

(3) prohibited without notice to the court and the other spouse; and

(4) permissible without a court order or notice to the other spouse.  

The ATROs, however, do not prevent a divorcing person from creating a new will, power of attorney, medical directive, and an unfunded trust. ATROs cover certain actions such as revoking a revocable trust, changing a beneficiary designation, and severing of a joint tenancy, which can be taken with only proper notice to the other spouse.   The ATROs require court action when funding, creating, or modifying a nonprobate transfer without the other spouse's consent.  Section 2040 of the Family Code provides a definition of nonprobate transfers to include a revocable trust, a financial institution payable on death designation, transfer on death deed, transfer on death of personal property, and a Totten trust. 

To understand better what you can or cannot do with assets during a divorce, contact us today at (760) 918-5630.

About the Author

Andrew Gilliland

Drew Gilliland Phone: 760-918-5630 Email: [email protected] Whether its Estate Planning, Probate, or a Immigration Law matter, I have the opportunity to work with you to make sure that your family is protected from the ravages of incapacity and death.  I believe i...

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