Legal Question in Family Law in California

My ex has traded in his car (which we both claimed as his "separate" property on our Declaration of Disclosure forms). And also a car that I claim as partial property (when we first married I provided $15,000 toward the payoff of this second car). I was under the impression that nothing could be sold or traded in until the divorce was final. Do I file a Restraining Order? It's already a done deal on his part. Plus, don't we already have a Standard Automatic Restraining Order from date of filing (on the back of the divorce summons). I'm unsure of whether to file another "real" Restraining Order so the Judge can actually hear the details and/or so my ex can truly understand you aren't supposed to do that. Or do I just file a Contempt of Court order?


Asked on 4/14/11, 8:14 am

2 Answers from Attorneys
Anthony Roach Law Office of Anthony A. Roach

Family Code section 2040 prevents a spouse from transferring separate property, but the Legislature has left a conflict between section 2040 and Section 2010, which provides that the Court has no jurisdiction over a spouse�s separate property. (In re Marriage of Buford (1984) 155 Cal.App.3d 74, 78; Porter v. Superior Court (1977) 73 Cal. App. 3d 793, which make clear that the Court lacks jurisdiction over the separate property of a spouse.)

The Court�s jurisdiction over a spouse�s separate property is strictly limited to determining the character of a spouse�s separate property.

You can file an Order to Show Cause re: contempt, but be prepared for a skilled lawyer to raise the above issues. Additionally, the question arises how your ex was able to transfer a car that you claim was your separate property. If the car was truly your separate property, it should have been registered in your name. Your ex would not have been able to lawfully transfer the car without your consent. So I suggest being ready to prove it was your car.

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Answered on 4/14/11, 9:29 am
Rhonda Ellifritz Law Offices of Rhonda Ellifritz

There is an excellent, detailed answer to your question at this site:

http://www.avvo.com/legal-answers/how-can-you-stop-one-party-from-selling-all-of-the-405124.html

You would file a contempt order, but it is very difficult to succeed without an attorney. It is a criminal case, basically, so the requirements are very strict.

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Answered on 4/14/11, 10:21 am


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