Published by the Law Offices of Bruce Colodny
By Bruce Colodny, The California Gun Attorney
Copyright © 2023
Even if you think your divorce or separation will be friendly, it's important for you to know the pitfalls if the divorce process does go sour. Often times, a divorce that began on friendly terms, becomes very bitter as soon as one spouse begins dating.
If you are a California gun owner, your divorce is likely to include important gun-related issues in addition to the usual issues of division of property and debts, spousal support, and if you have minor children, child support, custody and visitation. Gun-related issues may arise before, during and after your divorce and because California gun laws are some of the most restrictive in the entire USA, your attorney should be experienced and prepared to safeguard your guns and your gun rights.
Some common legal issues which the gun owner may confront in a California divorce case are:
Division of Property:
Your spouse may claim that all or part of your gun collection either is community property which you must divide with them and/or is their separate property which is owned by them, not you. Here are some basic guidelines in determining the difference between community and separate property:
Community Property:
Most property acquired during the marriage (the major exceptions are gifts or inheritances) is owned jointly by both spouses and is divided upon divorce.
Separate Property:
Generally speaking, the property that each partner brings into the marriage or receives by gift or inheritance is considered separate property. Separate property that is co-mingled with community property or has had a spouse's name added to the ownership may be considered community property.
Restraining Orders:
Whether it's true or not, your spouse may claim that you committed or threatened violence against them and ask the Court to issue a restraining order against you. Under the California Domestic Violence Prevention Act, a Court may issue temporary restraining orders against you including an order that demands that, within 24 hours of being served, you must either relinquish your guns to a law enforcement agency, or, sell them to, or have them stored by, a licensed firearms dealer. The Court may issue such an order with no advance notice to you and your first knowledge of the loss of your gun rights will occur when you are served with a copy of the order. Failure to dispose of firearms in one of these manners within this 24 hour period is a violation of the order and could result in a criminal conviction. This temporary loss of your rights is not limited to your guns. Under California law a person who is prohibited from possessing or using firearms is also prohibited from possessing or using ammunition, ammunition reloading components, ammunition magazines and other ammunition feeding devices.
The fact that the Court has set an OSC (Order to show cause) hearing in 20 days regarding a restraining order is not much help other than it provides some time to hire an attorney. Restraining Orders can be issued for up to five years and can be renewed when that five years is up.
A restraining order is a particular difficult problem for the gun owner with a large collection of guns, including security issues, difficulty finding all the ammunition and components, high capacity magazines, or unregistered assault weapons. Our attorneys may be able to help you avoid some, if not all, of these problems.
Misdemeanor Crimes Of Domestic Violence:
The California gun owner's worst nightmare is a conviction for a "misdemeanor crime of domestic violence" which, under current law, results in a lifetime Federal firearms prohibition. Giving a false report to law enforcement of domestic violence is a frequent and unlawful below-the-belt blow that is too often used and the person giving the false report is rarely prosecuted.
A criminal conviction for domestic violence results in the application of certain legal presumptions making it substantially more difficult for the convicted spouse to obtain fair and just results in the divorce proceedings.
The immediate negative effects upon the spouse accused of domestic violence usually include:
First, they are arrested with the further expense of bail and the cost of hiring a criminal defense attorney.
Second, if accused spouse was still living in the family residence, they are now almost certain to be ordered by the Court to get out, to stay away from and have no contact with the other spouse and the children.
Third, a restraining order excluding the accused spouse from the family residence and prohibiting contact, will also include the firearm prohibition and relinquishment/sale discussed above.
Custody and Visitation:
If your spouse is anti-gun, vindictive, and/or overly protective, they may ask the Court to prohibit or restrict your possession or use of firearms when the minor children are in your custody or visiting you. Here are some examples:
This year, for the first time you had planned to take your 12 year old son along with you for the annual opening of dove season, but now your spouse argues that this will put your son in mortal danger because there will be drinking and they gave their attorney a photograph from last year's dove opener which shows you and your hunting buddies with dove breasts on the BBQ grill and the photograph shows some of you holding a beer. Despite that this photograph was taken after the day's hunt was over and all the guns had been unloaded and secured, your spouse's attorney may attempt to use it in an effort to convince the Court that you should not be allowed to take your son on a hunting trip because there will be drinking and guns.
Your spouse alleges that your habit of keeping a handgun readily accessible for self-defense endangers the minor children.
You often attend gun shows and now your spouse asks the Court to order that you cannot take your 14 year old son with you to gun shows. Your spouse's attorney tries to convince the court that gun shows are notorious for unlawful firearm sales and political extremism, and that they are frequented by a "bad element" and therefore dangerous to the child's safety.
If you have made the difficult decision to end your relationship and value your rights, you should contact an attorney that understands and can handle your specific issues so that the process is easier and does not burden you with long-lasting problems or prevent you from enjoying a fulfilling relationship with your children.
Family law cases include many important legal issues such as divorce, legal separation, division of property and debt, child custody and visitation, child and spousal support, business valuation, health and life insurance, tax consequences, paternity, and pensions. How your attorney handles these matters may affect you for many years to come.