Published by the Law Offices of Bruce Colodny
By Bruce Colodny, The California Gun Attorney
Revised & Copyright © 2017
Everyone expects to pay when they go through a divorce, but as an attorney representing California gun owners for over 30 years, I can tell you that a divorce may cost you much more than money. For example, California gun owners can temporarily lose their ability to possess, purchase or receive a firearm; additionally a judge can order the surrender or sale of firearms you already own. California gun owners ending a non-marital relationship face the same dangers.
Before I go further, it is my opinion that much of the law to be discussed in this article is unconstitutional, however, the reader should expect that these laws will be enforced, unless and until, they are repealed or overturned by an appellate court. Therefore, this article is intended to educate and assist those California gun owners who are, or soon may be, in a divorce proceeding or ending a non-marital relationship.
This article will discuss the firearms restrictions placed on an individual who becomes the subject of a domestic violence or harassment restraining order, the "surrender, sell or store with a licensed dealer" order, the importance of avoiding domestic disputes involving a law enforcement response or resulting in a request for the issuance of a restraining order, the potential negative impact of firearms ownership on a child custody or visitation, and firearms and the division of marital property.
When properly issued and served, restraining orders based on a claim of actual or threatened violence or harassment prohibit the subject individual from buying, possessing or receiving firearms. There are criminal penalties for disobeying such court orders which range up to a felony conviction with three years in state prison plus a $1,000 fine; even a misdemeanor conviction for violation of such an order can result in a ten-year prohibition against firearms ownership in California. Finally, under Federal law, if a qualified restraining order was obtained by an intimate partner, after the order is served, and while it remains in effect, the subject individual is prohibited from possessing, purchasing, or receiving firearms and ammunition. Violation of such an order is a felony punishable by up to 10 years in Federal prison and/or a $250,000 fine.
Restraining orders are, without question, necessary in some circumstances, however they are often abused. An individual can become the subject of a restraining order with little or no advance notice. Under the Domestic Violence Prevention Act, your spouse, family member, cohabitant (any person, of either sex, with whom you share, or formerly shared a household), even a girlfriend or boyfriend that you never lived with (only a past or present dating or engagement relationship is required) can apply for, and obtain, a restraining order, often with little difficulty. There is another procedure for use by persons who do not have one of the above relationships with the subject individual. These orders are often obtained on the basis of exaggerated or false accusations of threats or violence. These orders may be, and are regularly obtained, without an attorney. These orders may be, and often are, obtained without notice to you because the person seeking the order convinced the Court that if you had been given advance notice, that would increase the chance that you would commit violence or harassment. These orders can remain in effect for up to five years and, even then, can be extended after notice and a hearing.
So what do you do if you receive a telephone call from your ex or their lawyer informing you they will be appearing in court the next day to seek a restraining order against you? First, remain calm and don't make any threats. Second, immediately consult a lawyer. Third, be certain you attend the hearing and, if at all possible, bring your own lawyer with you.
If you are served with a temporary restraining order that was obtained without you being given advance notice, again, remain calm, don't make any threats, obey the order, consult a lawyer as soon as possible, and plan to attend the next hearing and if possible, hire an attorney to represent you in court.
If you are unable to hire an attorney, when you attend the court hearing, do not lose your temper or show emotion, even if the person seeking the restraining order is untruthful; wait until it is your turn to respond, and speak calmly. Since many judges base their decision of whether to issue the initial temporary restraining order only on written declarations rather than on live testimony, think carefully about what you may put in a written response that you may file. Do not make false statements, yet try to avoid admissions or say anything which might be interpreted as a threat, and state that you oppose the issuance of the order. A temporary restraining order issued on little or no advance notice is called an ex parte order and you are entitled to another hearing, usually in approximately 20 days, at which time the court will consider making the order permanent; hire your own lawyer as soon as possible so they can prepare for, and represent you at this hearing. Do not wait until after you lose at this hearing to hire a lawyer.
A California 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 that sell them to, or make arranged them stored by, a licensed firearms dealer and within 48 hours of being served, file proof with the Court that you have complied with the order to relinquish, sell to or store you guns with a licensed firearms dealer. If you are in possession of a firearm that may be unlawful to possess, for example, a firearm that was classified as an ordinary rifle when you bought it years ago, but due to changes in California law, is now classified as an "assault weapon", you should immediately consult with a lawyer.
The best method to avoid a restraining order is to avoid common situations which often lead up to the application for the order. For example, avoid the abuse of alcohol or drugs as well as relationships with those who are abusers. If the person you have been trying to date indicates they are not interested, or if someone you are actually dating tells you the relationship is over, do not persist as they may seek a restraining order alleging harassment or stalking. Do not threaten violence against, or become violent with, your spouse or girlfriend/boyfriend. If the situation deteriorates, consider leaving. Remember, in addition to being grounds to seek a restraining order, even minor physical violence can result in a conviction for one of the numerous misdemeanors which prohibits you from firearms ownership in California for a period of ten years. Also, a California misdemeanor conviction deemed to be "domestic violence" under Federal law currently results in loss of gun rights for life.
There is another potential legal trap for California gun owners who allow themselves to become involved in a domestic dispute. If you and your spouse are having an argument which becomes so loud or violent that the police are called, the police will likely seize your firearms. Although firearms seized under such circumstances should be returned unless they were unlawfully possessed, unlawfully used, or retained for use as evidence, as a practical matter, the police may refuse to return them. If the police will not release the firearms or if they initiate a forfeiture petition in Superior Court, you should hire an attorney to protect your property rights. Also if you have been drinking, or are argumentative, the police may detain you for a 72 hour psychiatric evaluation (commonly referred to as a "5150 Hold"). You are taken to the locked mental health ward of a local hospital for observation and evaluation. When you are released, California law may impose a five-year firearms prohibition. If so, you can petition in Superior Court to restore your rights early, but you may face an uphill legal battle and you will likely incur substantial attorney's fees.
What other legal problems can firearms cause in a divorce setting? If you are a gun owner and there is a dispute over child custody or visitation, your ex-spouse may attempt to use gun ownership against you. Most people, including judges, have strong feelings when it comes to guns. If you cannot avoid an anti-gun judge, you might offer proof that you have a gun safe and that both you and your children have successfully completed formal firearms safety training. Another potential divorce issue is the division of marital property. Firearms which you acquired prior to marriage as well as those obtained by gift or inheritance, should be deemed your separate property and should be awarded to you without offset to your spouse.