San Jose Family Law Attorney Supports Families
Our Local Family Lawyer Answers Frequently Asked Questions
Of all areas of law, nothing pulls at the heart like divorce. The infrastructure of your life begins to deteriorate. Family relationships turn hostile as you are left wondering how to pick up the pieces of your life. All the while, you want to be financially stable and take care of your children. With so many disturbances in your home, it can be difficult to navigate family law issues. While some consider divorce be more painful than death, you do not need to feel alone or hopeless. A passionate and experienced family law attorney can help you be heard in your family law issues.
At the Law Offices of Thomas Nicholas Cvietkovich, we understand the turmoil and anxiety of dissolving your marriage. Dealing with child custody, child visitation, child support, spousal support (alimony) and property division can be overwhelming. Our San Jose family law attorney can help you and guide you through each step.
We protect your rights with a thorough understanding of complicated California laws. Our San Jose family law attorney knows how to handle divorce and custody. Do not gamble with your future by making decisions that can impact your family alone. With a family lawyer, you can reach a quick resolution.
- What Are Types of Family Law?
- Does Family Law Include Divorce?
- What Is the Divorce Court Process?
- What Are My Rights When Defending Domestic Violence Charges?
- How Are Contested Divorces Settled?
- What Happens When My Spouse Leaves?
- Do I Need a Family Law Attorney?
- How Does a Restraining Order Work?
- What Is Mandatory Child Custody Counseling?
- Should I Get a Lawyer for Divorce?
- How Is My Military Divorce Different from the Regular Divorce Process?
What Are Types of Family Law?
There are many different types of cases that are heard at family court. Although family law cases may intersect with other areas as well, most legal cases fall into three categories:
- Family Cases: While family cases are a type of civil case, they are more specific. Usually, they involve parents, children and/or spouses. For example, common family cases involve marriage dissolution such as divorce or annulment, guardianship, juvenile matters, adoptions, child custody issues, name changes and protections against domestic violence.
- Civil Cases: Usually, general civil cases involve injuries or disputes over money. Common examples of disputes are landlord/tenant issues, breach of contract claims, foreclosures and property sales.
- Criminal Cases: As a rule, these proceedings change based on state. Punishments can involve fines, community service, prison, probation or other penalties.
Does Family Law Include Divorce?
Yes. Family law covers many types of marriage dissolution. Depending on the situation, divorce may not be the best option. For example, some religious beliefs make it difficult for couples to divorce. However, there are other options available. In addition to divorce, family law includes:
- Child Custody
- Visitation Rights
- Child Support Payments
What Is the Divorce Court Process?
Unfortunately, it is not uncommon for divorce proceedings to bring a tremendous amount of stress and questions. Sometimes anxieties mount so high that some parties will even ignore a petition. For this reason, you should consider hiring a San Jose divorce attorney. An experienced professional can identify if any part of the process can slow down your divorce. Every state has their own set regulations for divorce court. However, filing for divorce in California involves:
- Petition: This legal document identifies the parties involved and begins the process. This is a formal application to the court that requests a specific action or form of relief. It can be started by either party.
- Financial Disclosure: Both parties disclose their separate financial information, assets and obligations. This information is usually given to the court at the end and beginning of the divorce court process.
- Response: If the other party does not respond, the judgment defaults the petitioners proposed judgment. When both parties come to an agreement, the result will be a stipulated judgment. A stipulated judgment is a legal document by both parties that details the agreement. If both parties respond but cannot come to an agreement, litigation begins. After litigation, the court orders judgment.
- Negotiations: It may be possible to avoid a trial if both you and your spouse can agree to settlement negotiations. A skilled family lawyer can use negotiations to preserve relationships and mitigate court costs.
- Trial: Divorces do not need to end in a trial but sometimes it is necessary. Attorneys can use their skillful litigation to help bring a favorable and swift resolution.
What Are My Rights When Defending Domestic Violence Charges?
If you have been arrested on a domestic violence charge, you have rights that are protected by law. In addition, you also have statutory rights that give you options. Most importantly, you have the right to remain silent until you have spoken to a domestic assault attorney. Protecting your rights is important if you want to try to dismiss or reduce the charges against you. If you believe the evidence is strong against you, our firm can negotiate with prosecutors. Contact a California domestic violence attorney immediately to mitigate the risk of unknowingly waiving these rights. Some common domestic abuse claims our firm handles involve:
- Stalking: Stalking charges can materialize if you follow someone in person or online. A California family law attorney can help defend against these subjective claims.
- Harassment: You can face a domestic violence charge even if there has been no physical action. These claims allege that you have disturbed the peace or made a threat.
- Child Neglect: In some cases, a party may claim that a child is neglected due to domestic violence or other home issues. Obtaining a child witness can work in your favor to prove you were not a cause of neglect.
- Physical Abuse: Unfortunately, a spouse, family member or partner may claim you have physically hurt them. A domestic violence defense attorney can help counter allegations that are not supported.
How Are Contested Divorces Settled?
Even in the situation of a contested divorce, the California courts define all divorces as “no-fault.” This means that neither you or your spouse need to prove that the other did something wrong.
As a result, the courts will use evidence and data to determine the division of assets. Usually, assets are given to those who demonstrate that they need the assets more than the other party. For example, a shared vehicle may be sold and the profits split. If you expect to have custody of your children, odds are you can establish that you have the greatest need.
Judges will base their decision on the facts from outside sources and both you and your spouse’s lawyers. This creates an opportunity for broad stroke figures and fuzzy logic. Your spouse may try to use legal tricks to make you agree to unfair terms. Therefore, a respected and diligent divorce lawyer can make all the difference in protecting your assets.
Back to Top
What Happens When My Spouse Leaves?
If your spouse has suddenly left, you should contact a divorce attorney as soon as possible. You may assume that it is unnecessary to hire legal counsel to finalize your divorce. However, California divorce laws are complex. If your spouse picks up and leaves, you can be left with quite a mess on your hands. Chances are that he or she will not respond to divorce filings or make any necessary court appearances. As a result, you may face unique challenges toward protecting your best interests, have increased stress and feel overwhelmed.
You do not need to remain married just because your spouse does not want to be involved with divorce proceedings. However, there are difficulties with starting the divorce process if you are unable to serve your spouse with divorce papers. You deserve to have your assets, property, rights and best interest protected. Our San Jose divorce lawyers can help you with all of the legal filings and court appearances that are necessary.
Back to Top
Do I Need a Family Law Attorney?
It is risky to litigate in emotional situations without a trained family law lawyer. For example, with divorce, court appearances are required even if you and your spouse can quickly agree on most of the major issues. Unfortunately, you will be litigating in the courts if you go through divorce. These moments of litigation have a drastic impact on the outcome of your case. Furthermore, California divorce laws involve many parts of laws across other practices. If you head to court without a lawyer, you could be at a great disadvantage. A lawyer can guide you through the process to minimize any proposed agreement that is not in your best interests. Sometimes a lawyer is necessary just to have the peace of mind that a crucial issue is missed altogether.
Our lawyers know how the family courts work and who the family court judges are. Additionally, we know the proclivities of the other family law attorneys, including their defense strategies. We also know what they charge. That is why our law firm charges rates that are much more affordable than those of many of our competitors. If you try to get through divorce litigation alone, it could end up costing you much more in the long run. Our attorneys can help you so that you can work with them and reach a fair resolution.
Back to Top
How Does a Restraining Order Work?
Ultimately, a restraining order is intended to protect parties from harm. The purpose of a restraining order is to keep an abuser away from their victim. However, it can be difficult to determine how accurate claims are. Some common questions people ask when dealing with a restraining order in California are:
- Who Can Get a Restraining Order: Any victim of any age who has been involved in domestic violence can request a restraining order. Any acts of assault, criminal mischief, harassment, lewdness, threats, false imprisonment and other acts can constitute a restraining order.
- What Does a Restraining Order Do: If a restraining order goes into effect, the abuser cannot have any contact with the victim. This includes in person or by the phone. In addition, the abuser can be asked to leave a residence if the victim is there. Finally, the court may order escorts of programs to facilitate the restraining order.
- How Long Does a Restraining Order Last: This will ultimately be determined by the courts. However, first there will be a Temporary Restraining Order issued. Usually, this is a ten-day period where you are to be served with paperwork.
What Is Mandatory Child Custody Counseling?
Family Code Section §3170 mandates that the case be set for child custody recommending counseling prior to the court hearing. This happens in any dissolution matter regarding child custody and visitation where there is a dispute. If an agreement is reached, it is reported to the court through the attorneys. As a result, the court hearing may be canceled, and the family makes its own decision. If no agreement is reached, a recommendation will be made by the court counselor and the court hearing will proceed. The purpose of family court services is to:
- Settle Disputes: Assist families in the settlement of domestic controversies. Usually, these involve the welfare of children where there is an action in Family Court.
- Define Parental Contact: We know you want to mitigate the effects divorce will have on the relationship you’re your children. Family court can ensure children get frequent and continuing contact with both parents after the dissolution of marriage.
- Encourage Cooperation: It can be difficult to come to terms with the sharing of rights and responsibilities. The family court will define the terms of your child custody agreement during and following a dissolution.
- Guardianship: Investigate guardianship cases scheduled for the Probate Court when the prospective guardian is a relative of the child. The investigation will help try to ensure the needs of the child will be met. (Probate Code §1513 & Family Code §3110).
Should I Get a Lawyer for Divorce?
If you are preparing for divorce, you should seek the counsel of a divorce attorney to learn about mediation. In San Jose, California, there are two types of mediation that often apply to divorce actions. Concerning the division of assets and debts, mediating can move the couple to an agreed upon resolution. Divorce mediation moves quicker than a drawn-out negotiation through counsel. It is important to work with an attorney who can review the settlement details. A reliable divorce lawyer can make sure you do not agree to something that is not in your best interests. An experienced lawyer can effectively guide you through mediation and help you finalize your divorce.
Family Court Services (FCS) provides child custody recommending counseling in family law cases. This happens when separating or divorcing parents cannot agree on a child custody plan. Child custody recommending counseling is provided in a private counseling office with a court counselor. The FCS allows both parents to work together toward a mutually acceptable agreement for the best interest of the children. The FCS sessions are usually short, lasting an approximate 1 1/2 to 2 1/2 hours.
Back to Top
How Is My Military Divorce Different from the Regular Divorce Process?
Divorce is never easy. For military families, the process is even harder. With so many to consider things get much more complex than a divorce between two civilians. Some issues that complicate the process include:
- Filing: Divorces are generally filed in the state where the married couple has legal residence. If a non-military spouse files for divorce in a state that is not the legal residence of the spouse, the court may lack authority to divide a pension.
- Child custody: Besides being legally complex, custody arrangements are emotionally taxing. Many factors will change the nuances of your cases including whether or not both spouses are in the military or if either spouse is deployed.
- Division of military benefits: All states treat military pensions as community property. There are many issues to consider such as how long the military spouse has been serving and if
- Child Support payments: Service members are required to provide adequate child support. Besides the Air Force, each branch has its own rules. State law supersedes these military instructions and determines the child support based on the entitlements of the service member. This includes allowance for housing, basic pay, basic allowance for subsistence and any other special pay.
- Health Care: After a divorce, a non-military spouse can opt for no-cost coverage under TRICARE if their marriage lasted for at least 20 years during active service. Otherwise, they may purchase insurance through the Continued Health Care Benefit Program.
We understand the unique issues you are facing. We think ahead so that your settlement addresses matters such as if you are stationed in another state but your ex-spouse wants to remain in San Jose, California with the children, or what will happen if you are sent overseas for a year.
Back to Top
Family Law Questions? Call Our Bay Area Family Law Attorney Now
Are you preparing for divorce? Have questions about child custody, adoption or support? Looking to modify an existing court order? Questions about power of attorney? Family disturbances in your home can create an environment where no one in your family seems safe. Furthermore, it is easy to be worried about the safety of your children. We know how difficult family disputes can be. With compassion and respect, we will pursue every option to ensure you have the best outcome possible.
At the Law Offices of Thomas Nicholas Cvietkovich, your consultation is always confidential. Furthermore, our staff is adaptive and accommodating. Our San Jose family law attorney is conveniently available. Unlike most attorneys, we do not want you to fill out an impersonal questionnaire when you visit. We prefer to talk face to face and get your family’s story from your point of view. Contact us today at (408) 404-8656 to schedule a free consultation.