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Four Reasons You Need an Attorney for Your DivorceThe idea of getting a divorce without hiring an attorney is understandably tempting. Divorce is already an expensive process, and attorney fees only add to it. You may also have the perception that an attorney will steer you away from out-of-court settlements and towards a more contentious trial. However, divorcing without an attorney is risky and often unwise. There are several reasons why you need an experienced advocate on your side throughout the process:

  1. Divorce Is Complicated: Getting a divorce requires filling out numerous forms, negotiating a settlement and attending court hearings, all while adhering to divorce laws. Add children and valuable marital properties, and a divorce may be the most complex process you ever go through. Mistakes in filing documents or following the law will cost you time and money. Divorce attorneys are educated and trained to handle these cases, while divorcees are trying to learn the law on their own. A divorce attorney will make sure that you avoid basic mistakes and that your settlement will be approved in court.
  2. Attorneys Are the Great Equalizer: Not all spouses have the same knowledge and aptitude for the legal and financial matters involved in a divorce. A more knowledgeable spouse may take advantage of the other spouse to gain a more favorable settlement. Your divorce attorney will not give in to intimidation or deceptive offers. Your spouse may have been the more dominant person in your marriage, but an attorney can give you equal standing in your divorce.
  3. Amicable Divorce Is Not For Everyone: In order to successfully divorce without an attorney, you need to cooperate with your spouse. However, you may be getting a divorce because of poor communication in your marriage. You may not be openly angry at your spouse to start, but divorce negotiations can easily devolve into personal arguments. A divorce attorney can help defuse some of your personal animosity and keep you focused on practical matters.
  4. Divorce Is Life-Consuming: Your divorce requires your attention, sometimes at the expense of other aspects of your life. It may diminish your productivity at work, your relationships with your friends and your focus as a parent. Going through a divorce on your own will increase your burden. A divorce attorney will relieve you of some of the daily stress by taking care of the time-consuming legal procedures involved with divorce.

Your Advocate

It is not enough to simply get through a divorce. You need a favorable agreement that will support you during your post-divorce life. A San Jose divorce attorney at the Law Offices of Thomas Nicholas Cvietkovich can help you reach a beneficial divorce settlement. Schedule a consultation by calling 408-625-1130.

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Contesting Your Restraining OrderA restraining order is a powerful tool for victims of domestic violence but disruptive to the lives of those it is used against. In the restraining order, the accuser can request that the alleged offender:

  • Not contact any of the victims;
  • Leave his or her home;
  • Give up certain properties; and
  • Pay spousal and child support.

When someone requests a restraining order against you, you must respect the conditions that it sets. Even if you believe your accuser is lying, violating the order may lead to criminal charges. California allows you a hearing to contest the grounds for your restraining order.

Initial Notice

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Four Types of Child Visitation Orders in CaliforniaCalifornia has two forms of child custody that parents receive during a divorce. Legal custody determines the parents’ rights to make decisions relating to their children, while physical custody determines who the children will live with. A court can grant joint custody or appoint a parent as the primary custodian. In many cases, it is more practical for one parent to have primary physical custody rather than attempt to split the parenting time evenly. The time that the non-custodial parent spends with his or her children is called visitation. Divorcing parents must submit a proposed visitation agreement as part of the divorce settlement. There are four types of visitation orders in California:

  1. Scheduled Visitation: The parents give a detailed visitation plan that includes which days the children will spend with each parent. The plan usually follows a regular pattern, with some exceptions for holidays and vacations.
  2. Reasonable Visitation: Rather than adhering to a strict schedule, the parents have the flexibility to adjust visitation times to fit their needs. This system depends on the divorced parents being able to communicate and cooperate with each other.
  3. Supervised Visitation: The non-custodial parent can see the children only when another authorized adult is present. A court uses this visitation order when it is unsure of the safety of the children if left alone with the parent.
  4. No Visitation: A parent may be denied visitation if a court determines that being in the presence of the parent may be harmful to the children. This order is most often used when a parent poses a specific threat towards the children, such as parents who are sex offenders.

Deciding on Visitation

Parents and courts must consider the best interest of the children when creating and approving a visitation order. Factors may include:

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Posted on in Divorce

Reasons, Challenges Concerning Gray DivorceResearch suggests that baby boomers utilize divorce more than any generation before or after them. As baby boomers have grown older, people have come up with a term for the practice of these older couples separating: gray divorce. Spouses are considered to be getting a gray divorce when they are older than 50 and have been married for more than 20 years. Researchers are still studying why gray divorce has increased, while the divorce rate is going down for younger generations. What is known is that gray divorce can occur for different reasons than other kinds of divorce and poses unique challenges for the spouses involved.

Causes

Whether young or old, most couples choose to divorce because of a fundamental breakdown in their love for each other. They discover irreconcilable differences in how they want to live and what they value. However, this reason seems incomplete when discussing gray divorce. Why has the couple chosen to divorce after decades of marriage? Did the irreconcilable differences suddenly develop or did it take the couple that long to notice them? People’s lives change as they get older, which may make them more open to considering divorce:

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Complications of Nesting Arrangements for Child CustodyAn increasing number of separated parents are considering nesting for their child custody arrangement. A nesting arrangement reverses traditional child custody by having the children live in one home on a full-time basis, while each parent stays in the home during his or her visitation time. Parents who choose nesting hope that allowing their children to stay in one place will lessen the disruption after a divorce. Nesting seems like a creative solution to one of the most difficult parts of child custody. However, you must consider the potential complications before entering such an agreement.

Cooperation

When nesting, you and your former spouse are continuing to share a living space. You are not living there at the same time, but it is unrealistic to think that your lives will be separate. Thus, you must be willing to tolerate some interaction and cooperation between each other. As residents of the same home, you may need to communicate about:

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Divorce Does Not Affect Non-Marital Support ContractsA California appellate court recently ruled that a state court has the authority to enforce a federal affidavit of support for a sponsored immigrant. The case stemmed from a divorce and highlights the difference between spousal support and other contractual obligations to provide support. The immigrant woman will not receive spousal support from her former husband but is entitled to regular support payments as part of him sponsoring her residency in the U.S.

Case Details

In 2012, the two parties wed in an arranged marriage. The husband is a Fiji native who became a U.S. citizen, and the wife is a Fiji citizen. The husband successfully petitioned for his wife’s immigration into the U.S. As part of the process, he signed a form I-864 affidavit of support that obligates him to financially support her for 10 years. The woman claims that, upon moving to the U.S., her husband immediately started abusing her and said he did not want to be with her. She further claims that her husband abandoned her during a trip to Fiji later that year and stole the page in her passport that identified her as a permanent U.S. resident.

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California Does Not Require Separate Residences to Establish SeparationIt has been a year since California enacted a revision to divorce law that makes it easier for spouses to financially separate themselves during a divorce. The law eliminates the need for separate residences when a court rules whether spouses have separated during a divorce. It was a reaction to a 2015 California Supreme Court decision that placed greater requirements on spouses to show that they had separated. The date of separation can affect whether properties purchased during a divorce must be divided.

California Supreme Court Decision

California divorce law had long given courts discretion in determining the requirements for spouses to be living separate and apart. However, the California Supreme Court’s ruling in the 2015 case of “In re Marriage of Davis” stated that spouses must live in separate residences in order to meet the legal definition of living separate and apart. Identifying when spouses have separated is important when deciding on the division of marital property:

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Ensuring Your Prenuptial Agreement Can Be EnforcedCreating a prenuptial agreement is a pragmatic action that couples can take before they get married. It may be awkward to discuss the terms of a possible divorce, but a couple should think of the agreement as a safeguard that may never be used. If the marriage does end in divorce, a prenuptial agreement can settle some of the contested issues that usually drag out the divorce, such as:

  • Which properties are considered marital and separate;
  • How to divide the properties;
  • A spouse’s right to benefits, such as life insurance;
  • The terms of spousal support, including waiving it; and
  • Whether a former spouse will be a beneficiary in a will.

Though a prenuptial agreement can help during a divorce, a divorce court may invalidate it if it violates California’s standards. Legal guidance is needed throughout the process of creating a prenuptial agreement to ensure that it will be enforceable.

Involuntary Agreements

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When Child Custody Agreements Become AbductionChild custody agreements are carefully crafted parts of divorce settlements. When the parents cannot agree on the custody arrangement, the court must determine how the custody of the child will be divided. The judge approves an agreement that is in the best interest of the child, while balancing the custody rights of the parents. Parents may disagree with the custody settlements, but they must not unilaterally change the arrangements. Parents who violate a child custody agreement can be charged with parental abduction and may lose their custody rights if convicted.

Custody Violation

California law defines parental abduction, or interference of child custody, as depriving a child’s custodian of his or her right to custody or visitation. Legal custodians can violate the law, most commonly if they:

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Combating Digital Domestic AbuseDomestic abuse by a partner or loved one takes many forms. Physical abuse involves overtly harming the victim through a physical attack. Emotional abusers use their communication skills to threaten, demean or control victims. Communication technology advances have created a new subcategory of emotional abuse: digital domestic abuse. Digital abuse occurs among people of all ages, but it is most prevalent with people younger than 30. Much like any other form of domestic abuse, digital abuse must be combated with awareness and action.

Identifying Digital Abuse

Internet users are familiar with the anonymous trolls that enjoy harassing people for entertainment. Most people have learned to ignore trolls. Digital domestic abuse is harassing or controlling behavior by someone you know. Digital abusers can be harder to ignore because of their personal relationship with the victims. Their abuse may be part of the common interaction people have with friends on social media or through electronic communications. Examples of digital domestic abuse include:

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Posted on in Family Law

Advice for Newly Single ParentsFamily life after a divorce can be a dramatic change for everyone. Depending on how child custody is divided, the children may need to adjust to having multiple homes and social environments. For parents, raising their children may become more difficult. As single parents, they are individually responsible for tasks that were once shared between two people. It can be daunting, but many single parents have raised strong and successful children. Here are tips for being a newly single parent.

Organization

Single parents may need to put extra effort into scheduling their family and work lives. Raising children often involves busy schedules of transporting children to and from school, extracurricular activities, social events and doctor’s appointments. Divorced parents add transporting their children between each other to the schedule. You can organize a transportation schedule by:

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Divorce Court Ruling Shows Risk of Inviting ErrorA California appellate court rejected a plaintiff’s request to overturn a lower court’s order that she must retroactively compensate her former husband for child support and legal fees from their divorce case. In Ann Drobner Darsky v. Aaron Darsky, the plaintiff claimed that the lower court did not have the power to order the payments because it modified a previous court-approved divorce agreement without going through the proper legal process. The appellate court sided with the defendant’s argument that the plaintiff invited the error by the lower court because she did not object to ignoring the agreement during the case. The ruling is an example of why you must be vigilant in enforcing divorce agreements.

Initial Agreement

The former spouses in the case had filed for divorce in 2010. After several motions in regards to who must pay child support costs and legal fees, the parties reached an agreement in August 2011 that:

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Changing Your Spousal Support Agreement After DivorceSpousal support payments are established during a divorce based on each party’s financial resources and obligations. However, circumstances can change in ways someone cannot predict. A party may want to adjust or eliminate payments due to changes such as:

  • Unemployment;
  • Increased income;
  • Disability; and
  • The recipient remarrying or cohabiting with someone as part of a romantic relationship.

If you believe your spousal support agreement needs to be changed, you should take action immediately. In California, payment increases and decreases will be enforced only after you request the adjustment, not retroactive to when the change in circumstances started. There are several steps to successfully changing the payments.

Understanding Your Agreement

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How to Obtain a Domestic Violence Restraining Order in CaliforniaIf you are a victim of domestic violence, obtaining a protective order against the perpetrator is one of the most important steps you need to take to ensure your safety. In California, a domestic violence restraining order can:

  • Force your abuser to leave your shared home;
  • Give you custody of your children and any pets you share;
  • Give you temporary possession of shared property;
  • Order your abuser to reimburse you for expenses related to your abuse; and
  • Require your abuser to make child support payments.

Applying for a protective order in California is a multi-step process that you should start immediately, because it can take several weeks to complete.

Application

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The Ups and Downs of Marriage and Divorce StatisticsAccording to national statistics, the divorce rate has dropped for the third year in a row, while the rate in the number of marriages that took place increased. The divorce rate has hit the lowest point it has been in almost four decades. There has been an overall decrease of 25 percent for the number of couples getting divorced since 1980.

California Statistics

The state of California had one of the lowest number of divorces last year, coming in at number 45. This means that approximately every 12 out of 1,000 marriages ended in divorce. The national average was 17 out of every 1,000 marriages ending in divorce.

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Study Concludes ACA Helped Decrease Divorce RateThere has been debate over the past few months regarding the Affordable Care Act (ACA) a.k.a. Obamacare. The ACA was passed into law in March 2010 as a vehicle for people to obtain affordable health insurance. The law also expanded Medicaid's coverage. Since its passage, the ACA has been a contested bi-partisan issue between Democrat and Republican lawmakers, as well as a major issue in last year’s presidential campaign. A new study reveals that one of the benefits of the current ACA is that it may be responsible for lowering the divorce rate, particularly for those couples on Medicaid who normally would have filed for a “medical divorce.”

How Did ACA Reduce Divorce?

The paper, which was written by two University of Kansas economists and published by the National Bureau of Economic Research, discovered that states which expanded their Medicaid programs under the ACA law had an almost 6 percent decrease in divorce for people between the ages of 50 to 64, compared to states which did not implement Medicaid expansion.

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Hidden Assets and the Mutual Legal Assistance TreatyIt is not uncommon for couples involved in divorces to suspect each other of not being completely honest when it comes to full disclosure, especially when it concerns assets and property. The more assets a couple has, the messier the divorce can become.

California is a community property state, meaning that assets and property acquired by the couple during the marriage are equally owned by both of them. However, not all spouses agree with that law and attempt to hide assets from the other spouse. These assets often end up in other countries, and presumably, out of the reach of the other spouse.

The Mutual Legal Assistance Treaty

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The Uniform Child Custody Jurisdiction and Enforcement ActOne of the most difficult – and highly emotional – issues when a couple splits up is child custody. Although parents want what is best for their children, they often lose sight of that in the midst of a custody battle. It is not uncommon for issues to continue to arise long after the courts have issued their “final” custody decision, with one parent or the other filing modification motions or asking the court to intervene on other issues that come up.

In 1997, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) was drawn up by the National Conference of Commissioners on Uniform State Laws. The UCCJEA was drafted to address the serious jurisdiction issues that arise when parents do not live in the same state or when one parent moves after custody decisions have been made. Different states have different custody laws, so the purpose of the UCCJEA was to establish a uniform child custody law that would cover intrastate custody issues. The UCCJEA has been passed in forty-nine states, including California, as well as in the District of Columbia, U.S. Virgin Islands, and Guam. It has not been adopted in Massachusetts or Puerto Rico.

Jurisdiction under the UCCJEA

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Community vs Separate Property in a California DivorceOne of the many issues that couples going through a California divorce must work through is how will the assets and properties they own be divided. If they cannot come to an agreement, then the judge who is overseeing their divorce will decide that for them. California is a community property state, which means the law says that all assets and property the couple acquired during their marriage belongs to both equally and is therefore required to be divided equally between them.

If there are assets or property one spouse owned prior to the marriage, or if that property was given to the spouse either through an inheritance or a gift, then the court may consider that asset separate property. Property can also be considered separate if the spouse came into possession of that property after the couple separated.

To determine what will happen to an asset, the court must decide if:

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b2ap3_thumbnail_california-child-custody.jpgEven in the most “friendliest” of California divorces, when it comes to issues regarding child custody, the relationship between soon-to-be-ex-spouses can quickly become contentious. Unfortunately, if this happens, not only does it affect the parents, more importantly is the negative emotional impact that a child custody battle can have on the children of the marriage.

Under California law, there are two different categories of child custody – legal custody and physical custody. Legal custody addresses who makes decisions regarding the child’s welfare, including their education and health. Physical custody refers to the time with each parent the child will have. This includes the child’s primary residence, visitation, holidays, and vacation time.

There are different variations of how these custody categories are awarded. For example, both parents may be awarded legal custody, meaning they have equal say on decisions about the child’s education or medical care, but only one parent is awarded physical custody (this is the parent the child will primarily live with) and the other parent is awarded visitation time.  

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