What Is a Marital Settlement Agreement?

November 29, 2021

There are many important documents and agreements involved in the divorce process, so it is easy for one or both spouses to get lost and overwhelmed. However, one crucial agreement to start with is your marital settlement agreement. Below, our San Jose divorce lawyer explains a marital settlement agreement in California.

What Is a Marital Settlement Agreement?

A marital settlement agreement is a contract that sets the terms of your divorce. It covers the future relationship between you and your spouse after the divorce procedures. Further, it documents you and your spouse’s decisions about important issues, such as:

The agreement involves many components that will help you and your spouse feel clearer on where you both stand after the divorce.

What Are the Benefits of a Marital Settlement Agreement?

There are many benefits of a marital settlement agreement. A few of these benefits include:

  • You set the terms. The main benefit of this type of divorce agreement is that it lays out every detail of your divorce in writing. This limits any uncertainties that you, your spouse, your attorneys or the court may have when reviewing your divorce. The agreement can cover any important issues, from child custody to debt division. 
  • Streamline the divorce process. You and your spouse can create your own marital settlement agreement and file it with the divorce court. You can draft the agreement with the help of an experienced family law attorney. If you and your spouse can agree to important issues, then the court will not set the terms of your divorce, streamlining the process.  
  • Reduce time in court. You and your spouse create the agreement outside of court. Then, you submit it to the court, which must review it. It is possible that you will not have to go to court if the judge honors your written agreement. This is why it is important to write the agreement correctly and thoroughly. 

There is no right or wrong time to draft and enter into a marital settlement agreement. You can enter into an agreement before or after you separate or file for divorce. However, the sooner you settle your case the better, so try to file your agreement as soon as you can. Having a family law attorney guide you through this process can help to streamline your divorce proceedings. 

Contact Our San Jose Divorce Lawyer Today

Are you interested in learning more about marital settlement agreements or the process of filing for divorce in San Jose? Request a free consultation with our San Jose divorce attorney today. Call us today at (408) 404-8656 or fill out our online contact form.

How to File for Divorce in San Jose, CA

September 30, 2021

Making the decision to divorce your spouse is stressful. Once you make the decision, there are many steps to take before the divorce is finalized. Working with a divorce lawyer who will guide you through the process can make it less stressful. Below, our San Jose divorce attorney provides a brief guide about the process of how to file for divorce in San Jose, CA.

Step 1: File for Divorce in Santa Clara County

In order to file for divorce in San Jose, you or your spouse must have:

  • Been a resident of California for at least six months before filing for divorce
  • Lived in Santa Clara County for at least three months before filing for divorce

You must file for divorce in the county that you or your spouse have resided for at least three months. During the filing process, you and your lawyer will submit these two forms:

  • Petition. The Petition (FL-100) notifies the court that you are filing for divorce. It provides the court with factual information about your relationship and your order requests from the court.
  • Summons. Your lawyer will file the Summons (FL-110) with FL-100. FL-110 notifies your spouse that you have opened a divorce case.

However, your attorney will also submit local forms. In addition, there may be other critical forms to submit if you have children with your spouse or if you need temporary orders, such as a domestic violence restraining order (DVRO).

Step 2: Serve Your Spouse With Divorce Paperwork

You must have someone 18 years or older (it cannot be you) serve your spouse with copies of the divorce paperwork. Your spouse has 30 days to file his or her response to it. You must also show proof to the court that you served and/or attempted to serve your spouse with the paperwork. You show proof by filing a FL-115 form with the court.

Step 3: Financial Disclosures

California law requires both spouses to disclose important financial information to the court. This information must include each spouse’s assets and liabilities. It should also include an income and expense declaration. The point of financial disclosures is to make sure that the property division and any ordered support is fair. 

Step 4: Settlement Negotiations

During the negotiations phase, the spouses will attempt to reach an agreement about important matters such as property division, child support, child custody and alimony. However, if one or both parties cannot reach an agreement, or if one spouse contests the divorce, mediation or litigation may be required before you can get a divorce judgement.

Keep in mind that once you file for a divorce in California, you also enter a six-month waiting period before the divorce can be finalized. The waiting period is in place to give couples one more chance to repair a broken marriage.

Why Is It Important to Have a Divorce Lawyer on My Side?

It is important to have a divorce lawyer, because divorce can be complicated. This is especially true if one or both spouses do not agree on important aspects of the divorce. During this time, you may be concerned about your parenting rights, financial assets and your future. Many matters must be settled during divorce, including, but not limited to:

An experienced divorce attorney offers you support through expert advice and guidance through divorce proceedings. You do not have to do it alone!

Contact Our Divorce Lawyer About Your San Jose, CA Divorce

We understand the difficult decision to file for divorce. Our San Jose divorce lawyer can work with you one-on-one to answer your questions and help you choose the path that is best for you. Call us at (408) 404-8656 or contact us online to schedule a free, confidential consultation.

How Can I Recover Retirement Savings After a Divorce?

July 30, 2021

The thought of needing to give up retirement savings to pay for your divorce can be terrifying. Neither spouse wants to rebuild their retirement assets after a divorce. And, the process of doing so can be complicated, because qualified retirement plans have certain restrictions. For example, you can lose hundreds of thousands of dollars from your 401(k) during a divorce. But, you can only invest around $19,500 a year. Or $26,000 if you are over 50. Fortunately, there are ways that you can recover retirement savings after a divorce.

What Can I Do to Protect My Retirement Savings During Divorce?

  • Get a Qualified Domestic Relations Order (QDRO). Are you concerned that your spouse’s employer will pay out the benefits to your spouse, which could leave you with little to nothing in assets? You should consider getting a QDRO. A QDRO can protect you by ordering your spouse’s pension plan to pay your fair share of plan benefits. Your QDRO will guarantee that your marital settlement agreement does not permit the retirement assets to be separated and spent without penalty. These orders only apply to retirement plans that are IRA tax-qualified and covered by the Employee Retirement Income Security Act (ERISA).
  • Consult your attorney or specialist. The divorce court and your retirement plan’s administrator must approve your QDRO before it can be qualified. Your divorce attorney can give you the appropriate forms for your QDRO. Your attorney can also help you draft the specific wording of the order. He or she can read the retirement plan’s summary plan description, as well as other legal documents related to your QDRO, that will help both of you understand the terms of your plan.
  • Understand what your payout will look like. If you got married to your spouse with funds already in your retirement plan, those funds are usually handled as separate property during a divorce. If your spouse if covered by a 401(k), for example, the timing of your payment will depend on his or her specific plan. Some plans require an immediate payout, while others allow lump sum payments later on and periodic payments.

Discuss Your Situation With Our San Jose Divorce Lawyer

It’s crucial that you take the right legal steps to protect your assets and legal rights during a divorce. Do you want more information about what may happen to your retirement savings during your divorce proceedings? Contact San Jose divorce attorney Thomas Nicholas Cvietkovich for a free and confidential consultation.

What Is a Contested Divorce?

May 12, 2021

Our San Jose Divorce Lawyer Explains Contested Divorces

Some divorces end amicably with former spouses agreeing on key issues like child support, alimony, or the division or property. In other cases, the divorce process is much more adversarial. Contested divorces are a good example of a more adversarial type of divorce, where the former spouses cannot agree on one or more issues.

With a contested divorce, there are likely to be more hearings and legal requirements involved. In cases where spouses cannot reach a settlement, it may be necessary to complete an agreement in divorce court. Below, our San Jose divorce lawyer explains contested divorces in California.

Contested Divorces vs. Uncontested Divorces

Spouses involved in a contested divorce may have disagreements on the terms of their divorce. Disagreements may be over:

Uncontested divorces are exactly what they sound like. With an uncontested divorce, the spouses are in mutual agreements on the terms. California calls this a “summary dissolution”. Summary dissolution is a fast-tracked process to end a marriage. While this may be an option for some divorcing spouses, it may not be a good option for everyone. Not all couples are eligible for this type of divorce.

For example, you would need to have no minor children together with your spouse. Additionally, you and your spouse would have to waive your right to spousal support. Our San Jose divorce attorney can help you determine which divorce option is best for your situation.

How Long Does a Contested Divorce Take?

It depends on the circumstances surrounding your divorce. However, the steps involved may include:

  • 1. Meeting with your divorce attorney. During the first meeting with your divorce attorney, you would go over some of the specifics surrounding your divorce.
  • 2. Serving divorce papers to your spouse. After the initial meeting with your divorce attorney, it is time to serve your spouse divorce papers. Your spouse has 30 days to respond.
  • 3. Going through discovery. During the discovery phase, spouses obtain information on each other’s assets and income.
  • 4. Settlement negotiations or divorce court. If you and your spouse cannot come to a settlement on the terms of your divorce, then divorce court will be necessary. The court may decide the outcome of the divorce agreement after hearing arguments from both sides.
  • 5. Appeals process. If you or your spouse disagree with the court’s decision, then you may be able to appeal.

Contact Our San Jose Divorce Attorney for a Free Consultation

Our San Jose divorce attorney can walk you through the contested divorce process during a free consultation. We can answer any questions you have about reaching a settlement with your spouse.

You can schedule a free consultation with the Law Offices of Thomas Nicholas Cvietkovich by dialing (408) 404-8656 or by using the contact form on our site. Continue to follow our blog feed for regular updates on California divorce law matters.

How Can I File a Restraining Order During My Divorce?

April 15, 2021

A restraining order prohibits an individual from taking any specific actions against you. There are two types of restraining orders that are common in divorce proceedings. These are automatic restraining orders and domestic violence restraining orders. If you are in the middle of your divorce and you are interested in filing a restraining order against your ex-spouse, you should understand the differences between these two restraining orders that you can choose from.

What Is an Automatic Restraining Order?

Automatic restraining orders in California automatically restrain an ex-spouse from taking specified action after they file for divorce. These types of restraining orders are effective immediately when a spouse files the divorce papers and gives them to the other spouse. An automatic restraining order applies equally to both spouses, regardless of which spouse filed the paperwork. This order will remain in effect until the issuance of a court order that has modified the restraining order, dismissal of all divorce proceedings, or if the judge has issued a finalizing of the divorce.

What Is a Domestic Violence Restraining Order?

Domestic violence restraining orders are usually separate from the rest of the divorce proceedings, and a spouse can get this type of restraining order whether or not he or she filed for a divorce. These restraining orders are necessary when a spouse physically injures the other spouse or child or has threatened to harm them in any way. Domestic violence restraining orders are usually customizable to each unique divorce situation and can include certain terms such as a specific distance the spouse is restrained to.

If you are interested in filing for divorce and believe that you should file a restraining order, you should speak to a family law attorney to give you more information. Contact the Law Offices of Thomas Nicholas Cvietkovich for a free consultation.

How Long Does a Divorce Take in California?

March 25, 2021

San Jose Divorce Lawyer Discusses Factors That Lengthen Divorces

The cost of a divorce in California varies depending on the circumstances. Each case is going to be different. The same is true for how long a divorce takes to conclude in California. Many different factors can influence the length of a divorce – especially in cases where both former spouses are contesting the terms of the divorce.

However, there are additional factors, such as issues involving property division, that may also increase the length of a divorce. Below, our San Jose divorce lawyer discusses situations where a divorce may take longer.

Factors That Lengthen a California Divorce

Perhaps the greatest factor that can lengthen a divorce is when two former spouses cannot agree on the terms of a divorce. Common reasons spouses fight include:

  • Child custody. Child custody agreements can be a source of contention in a divorce. Parents may be unable to agree on how to divide time spent with their children.
  • Child support. The court may order one parent to pay child support. Depending on the payment amount and other circumstances, parents may fight over the monthly payments.
  • Alimony. Like with child support, spouses may be unable to agree on payments for alimony. Alimony is also called spousal support.
  • Property division. In a contested divorce, there are often disagreements over property ownership rights.
  • The overall level of complication. Certain factors can complicate a contested divorce. For instance, certain financial matters can affect the length of a divorce. A contested divorce may take longer if one spouse is hiding assets. Complex assets can also affect the length of a contested divorce.

The more combative spouses are, the longer the divorce is likely to take. Fighting over every aspect of the divorce typically means more court hearings or meetings with family law attorneys.

What Happens When I File for Divorce in California?

Once you file for a divorce in California, you enter a six-month waiting period. The waiting period is in place to give couples one more chance to repair a broken marriage. What happens next depends on the circumstances. During this time, you may seek temporary orders to resolve issues surrounding child support or custody.

If your spouse ignores the divorce petition, then the court may enter a default judgment. On the other hand, the court may issue a judgment after a trial if you and your spouse cannot agree to the divorce terms.

It may take only six months to finalize a divorce in cases where spouses can agree on matters surrounding their separation. When former spouses fight over every little detail, whether it be over child time-sharing or alimony payments, divorces may take longer.

Contact Our San Jose Divorce Lawyer For a Consultation

If you have specific questions about divorce in California, then call our San Jose divorce lawyer for a consultation. You can schedule a consultation with us by dialing (408) 404-8656 or by using the case review form on our site.

How Is California Child Support Determined?

March 16, 2021

Under the California Family Code, California outlines child support guidelines for court-ordered child support. The amount of child support is based on a complex mathematic formula that takes into account both parents’ net disposable income after a variety of deductions. In addition, the calculation also takes into account the amount of time each parent spends with his or her child.

The California Department of Child Support Services offers an online calculator to estimate the amount of child support that could be ordered in a person’s case. Their online calculator is based on California’s child support guidelines.

Are There Exceptions to California’s Child Support Formula Calculation?

Yes, there are exceptions. Though the court is required to use the formula’s calculation, the judge has the final authority in regard to the amount of child support a person must pay. There are special circumstances when the court can choose an amount different than the formula’s calculation.

Under California Family Code 4057, the court could order an amount different than the formula amount if:

  • The party to pay child support has an income that would exceed the child’s needs;
  • The parties use separate visitation schedules for different children;
  • Both parties have equal time with their child, but one party has a significantly lower or higher percentage of income used for housing.
  • One party is not contributing to the child’s needs proportionate to the time he or she spends with the child;
  • The child has special needs;
  • The child has more than two parents.

In addition, the court may order additional child support that regard a child’s:

  • Education or training related to employment skills;
  • Costs of health insurance;
  • Educational or special needs;
  • Travel expenses for visitation.

Need a San Jose Child Support Lawyer?

California’s child support guidelines are complex and can be hard to understand. If you have questions about your rights and responsibilities under California law, our family law attorney could help.

Contact the Law Offices of Thomas Nicholas Cvietkovich today at (408) 404-8656 to discuss your situation. We have more than a decade of experience helping families in San Jose and the surrounding Bay Area. You can also fill out our online form to schedule a free consultation.

How Much Does Divorce Cost in California?

December 9, 2020

San Jose Divorce Lawyer Explains What Affects the Cost of Divorce

It is quite common for family law attorneys to receive questions about how much a divorce costs. In California, and most likely anywhere else, the cost of a divorce depends on the situation. There are many different factors that can affect the cost of a divorce in California. Unfortunately, there is no way to determine how much a divorce costs at the onset of a case.

Factors That Affect the Cost of Divorce in California

Below, we list factors that may affect the cost of your divorce. However, contested divorces are more likely to be expensive than uncontested divorces. This is because one or both parties disagree on the potential terms of a divorce, such as child support or dividing certain properties or assets.

● Disagreements over property. One or both parties may have disagreements over the worth or ownership rights of assets and properties. Disputes could lead to additional court proceedings, which may prolong the divorce process and legal costs.

● Whether children are involved. Child custody or child support issues may prolong the divorce process. Parents may fight over custody or child support orders. As with many disputes during a divorce, this could mean additional court hearings and time spent resolving the dispute.

● Disagreements over alimony. Alimony, or spousal support, may be a factor in some divorces. Like with child support orders, one party or both parties may have disagreements over the amount of alimony provided.

These are only a few common examples of issues that may prolong a divorce and increase its costs. Couples who are prone to fighting over small details or couples with complicated finances or assets may run into more issues during the divorce process. The length and costs associated with a divorce vary on a case by case basis.

Why Do Contested Divorces Cost More and Take Longer?

The simple answer is: contested divorces mean more work for a family law attorney. Your attorney may need to spend time on tasks like discovery, which could include gathering documents or other information related to a case. For instance, if your ex-spouse is hiding assets that could be included in the divorce, then your attorney may need to work to uncover those assets.

In a contested divorce, your attorney would need to represent you at a greater number of hearings and may need to file motions on your behalf. Additionally, your attorney needs to negotiate a divorce settlement to resolve any lingering disputes.

Future blogs will discuss more information about the length of a divorce in California. Keep in mind, there are also unique circumstances in the hellish year that is 2020. COVID-19 could continue to affect court proceedings. As more cases spread, Santa Clara courts, and public facilities in general, may be more difficult to access.
Contact Our San Jose Divorce Attorney for More Information

Do you have questions about the cost of divorce in California? We encourage you to reach out to us. You can schedule a consultation with San Jose divorce lawyer Nick Cvietkovich by dialing (408) 404-8656 or by using the contact form on our site.

How to Develop a Parenting Plan After Divorce

May 30, 2020

After a divorce, there are many things that you will have to deal with within your family. It can be a stressful and emotional time, especially if you and your former spouse have disagreements about your futures. Having children between you and your ex can further complicate post-divorce plans, but there are ways to stay ahead of the game. A parenting plan is something that you and your ex must make in order to make your divorce easier for your children.

What Should Be Included in My Parenting Plan?

  • Parenting principles/behavior. This section is important but often overlooked, because your behavior after a divorce is extremely important for your kids, but can be seen as unimportant in relation to other things. Decide with your ex-spouse what kinds of arguments or discussion will be hidden from your kids, or what kinds of social behaviors should not happen around your kids (such as illegal drug use, parties, etc.). Any methods of communication should be finalized in this section as well.
  • Visitation schedule. This will outline when your children will spend time with the non-custodial parent. Many visitation schedules will have the children spend every other weekend with the other parent, but you should work out what’s best for both parents.
  • Visitation exchanges. This includes details on how, when and where your children will be dropped off or picked up for visitation. This is important especially if there is timing and location conflict between the two parents.
  • Vacation schedule. Where will your children be spending birthdays and major holidays? Knowing the details of these arrangements will save you and your ex-partner some trouble and stress around the holiday season.
  • Child support. The finer details of child support will be included in your child support order, but it’s still a good idea to address certain issues concerning the support of each child. The more details the better in order to avoid confusion, so lay out the general facts relating to child support in your parenting plan.
  • Records access. Both parents should have equal access to any school records and school activities. Any medical records should also be equally shared but ensure that both of you have equal authority on any emergency medical decisions.
  • Medical and educational expenses. Which parent will be responsible for health insurance for each child, how will uncovered medical expenses be paid, and how will private tuition or college expenses be handled? Make sure these details are answered in your parenting plan.
  • Relocation. Lastly, ensure how visitation for your children will be handled if one or both parents moves away, and figure out who will pay for travel expenses for long-distance visits.

We have experience in family law at our offices, so contact us today if you would like a family law attorney to assist you further with your parenting plan(s).

How Coronavirus Social Distancing Is Affecting Children in Custody Battles

April 30, 2020

The U.S. has been dealing with the effects of the novel coronavirus since January, when we saw our first confirmed case. Since COVID-19 is highly contagious, many states have since implemented social distancing policies. These policies aim to slow the spread of COVID-19 in order to protect citizens’ health. While studies show that social distancing is working, this practice is having another effect altogether.

Children in custody battles are feeling the impact of social distancing, as co-parenting becomes increasingly difficult to manage. If you are running into child custody issues as a result of the coronavirus, contact our San Jose family law attorney for help.

How to Practice Effective Social Distancing in California

Practicing effective social distancing requires real effort. California’s stay at home order prohibits leaving home except when absolutely essential. When out, the mandate asks that people keep 6ft of distance between one another. It also recommends avoiding direct contact with people who are not in your shared household. Avoiding large gatherings and public transportation is also key at this time.

For people who have contracted COVID-19, the CDC recommends isolating oneself from others. People who have been directly exposed to the virus should self-quarantine. This means isolating oneself from others for at least 14 days while monitoring for signs of illness.

How Coronavirus Is Affecting Children in Custody Battles

Coronavirus fears and risks are especially affecting the lives of children in custody battles. After a divorce, a custody agreement will determine visitation rights and a schedule for splitting time with children. However, the recent social distancing policies brought about by coronavirus complicates those plans. For example, parents must now contend with questions like:

  • How safe is it for my child to jump back and forth between homes during the current pandemic?
  • Is complying with a custody agreement considered an essential reason to leave the home at this time?
  • How strictly is the other parent following social distancing guidelines?
  • What would happen if the other parent contracts COVID-19?
  • Should I comply with the custody agreement if the other parent works in the medical field and comes into close contact with COVID-19?
  • Should I prohibit my child from visiting the other parent if there has been an outbreak in their community?

These are very serious questions that divorced parents must face during the coronavirus pandemic. Failing to comply with court-ordered custody agreements can invite legal trouble. This is especially true if the purported concerns about COVID-19 turn out to be mostly exaggerated.

However, coronavirus poses serious health risks that are sometimes a matter of life or death. A parent who is legitimately worried about the health and safety of their child may have good reason to not comply with a custody agreement. However, proving this to the court is another thing altogether. If you are experiencing these worries or issues, the best thing to do is contact a family law attorney for guidance.

Need Help With Your Custody Battle? Contact a Trusted San Jose Family Law Attorney

Coronavirus has already turned everyday life on its head. The last thing anyone wants is for COVID-19 to also have a negative effect on children in custody battles. However, if you have legitimate concerns, or are facing unnecessary pushback on your custody agreement, you may need a San Jose family law attorney to intervene. To get the help you need, schedule your free consultation at (408) 404-8656.