How Could a Restraining Order Help Me?

February 21, 2019

You may want to file a restraining order if you are the victim of physical, verbal or mental abuse. There are different types of California restraining orders. Your options for filing a California restraining order can depend on your relationship with the abuser. If the abuser is your spouse, significant other or a close family member, filing a domestic violence restraining order (DVRO) may be your best option.

A California restraining order could help you in many ways. A restraining order could include the following orders:

Stay-Away Orders

The court can order your abuser to keep a certain distance. This order can include your school or workplace, your vehicle and other places that you frequently visit. If you live together, the court could order the defendant to leave the property.

You can request that the court order the defendant to stay away from your children and their places of school and work. Also, you can include protection for other household or family members in your restraining order.

Personal Conduct Orders

In addition to stay-away orders, the court can prohibit the defendant from contacting you. Contact can include, but is not limited to, telephone, text, e-mail or letter.

The restraining order could also forbid the defendant of committing further abuse.

Custody Orders

You may request that the court grant legal and physical custody of your children. Keep in mind that the defendant may be granted visitation rights under specific orders.

In addition, the court could order the defendant to pay child support.  

Gun and Firearm Orders

Under California law, the court may require that the restrained person not possess or own any firearms or ammunition while the restraining order is active. The defendant must show proof that their firearms have been turned in or sold.

What If My Abuser Violates My Restraining Order?

If your abuser violates their restraining order in any way, call the police and report it. It is a crime to violate a restraining order.

If the restrained person contacts you electronically, document the violation. Write down as much information about it as you can or take pictures.

Speak With a San Jose Restraining Order Attorney About Your Situation

If you are the victim of abuse and want to file a California restraining order in San Jose or the surrounding Bay Area, we recommend that you speak with an experienced, San Jose restraining order attorney to discuss your situation. If you have an intimate or close relationship with your abuser, filing a DVRO may be your best option.

Our San Jose restraining order attorney could help you understand your legal options. We could also help you file a restraining order. Contact the Law Offices of Thomas Nicholas Cvietkovich online or call us at (408) 404-8656 for a free, confidential consultation.

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How Is California Child Support Determined?

January 16, 2019

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.

Pets Are Finally Family Under a New California Divorce Law

December 7, 2018

California pet parents rejoice! Governor Brown signed Assembly Bill 2274 (AB 2274), which will amend California’s Family Code in concern to how family pets are treated in court during a divorce or separation.

Currently, when a couple legally divorces or separates, our furry friends are not given too much consideration. They are treated as community property meant to be divided equally, but pet parents everywhere know that their pets are not the same as their coin collection or dining room table.

Usually, whoever is on their pets’ adoption certificates or sales receipts is granted ownership. However, under AB 2274, pets will be given more consideration. Though technically pets will continue to be termed community property by law, they will be treated more like children. Going into effect on January 1, 2019, a judge may use a pet’s wellbeing as a factor when granting pet custody.

Pet owners will be granted sole or joint ownership of their pets depending on factors like who spends the most time with them, feeds and walks them, and takes them to the veterinarian for checkups.

In addition, if formally requested by one or both parties, a judge may require one party to care for the pets during the divorce process. Whoever is assigned will be required to provide shelter, food and water, veterinary care and safety to their pets until the divorce finalization. However, it is important to note that whoever is assigned custody during the divorce process may not be granted custody during the divorce finalization.

You can read AB 2274’s full text on the California Legislative Information website.

Need a San Jose Family Law Attorney?

If you have questions about how this new law could affect your divorce case or any other questions about California’s community property laws, we recommend that you speak with an experienced, family law attorney. Contact the Law Offices of Thomas Nicholas Cvietkovich at (408) 404-8656 or online to schedule a free consultation.

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How Do I Make a Fair Parenting Plan for Thanksgiving?

November 16, 2018

If this is your first Thanksgiving since your divorce, you are probably wondering how to create a fair parenting plan. Your children may want to spend time with both sides of the family. Given that this is the beginning of the holiday season, you could make sure that you are creating a plan that is fair and takes the best interest of the children into consideration.

Common Ways that Families Divide and Share Parenting Time

  • Alternate holidays on odd and even years. For example, one parent might have the children for Thanksgiving on odd years and Christmas on even years, while the other parent would have the children for Thanksgiving on even years and Christmas on odd years.
  • If location is not much of an issue, you might consider splitting the holidays down the middle. Many families do this already, since there are often several stops to make to visit family during the holidays. The child can spend the first part of a holiday with one parent and the second half with another. However, make sure you plan ahead to make this transition smooth – you don’t want the kids to be stuck in a car all day.
  • What’s better than having one Thanksgiving? Having two! You don’t have to celebrate the holiday on the day that it falls on a calendar. Your children can spend Thanksgiving with one parent on the day of, and with the other parent on the day after.
  • Assign fixed holidays. For some families, it makes more sense to have holidays work the same way every year. Some parents may have different holidays that are important to them.

The Law Offices of Thomas Nicholas Cvietkovich is always prepared to answer your questions about divorce, child custody, child support and other family law topics. Call our San Jose family law office at (408) 404-8656 or contact us online or more information.

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Finding the Parental Visitation Schedule that Works Best for Your Family

October 12, 2018

When determining visitation in California, there are countless factors and circumstances that need to be considered. Visitation, which is different than custody, can be contentious. It is agreed upon and outlined how each parent will spend time with the children. Depending on the circumstances, the courts will first consider what is in the best interests of the child or children, and often, the child’s preferences.

Ironing out the details and wishes of the those involved should be considered. These are not limited to:

  • The child’s age
  • The gender of the parents
  • Siblings and ages
  • How the child handles decision making
  • What parent will provide the most stability
  • Bond with each parent
  • Religion
  • Differences in income
  • Arrests, domestic abuse or violence
  • If there are physical handicaps

In California, the courts will outline visitation to schedule a plan for how the parent will each spend time with the child or children. These schedules will break down the details, including birthdays, holidays, religious celebrations, Mother’s and Father’s Day, and any other family celebrations.

Based on the best interest of the children, you and your attorney can work out what is best to present to the court. Child visitation orders can vary. The types are:

  • Scheduled Visitation
  • Reasonable Visitation
  • Supervised Visitation
  • No Visitation

Child custody and visitation determinations can be complicated. Consult with the  Law Offices of Thomas Nicholas Cvietkovich at (408)404-8656 to review what is best for the terms of your divorce.  

How Can I Recover Retirement Plans After a Divorce?

September 14, 2018

When couples enter a divorce, the thought of needing to give up retirement savings in order to pay for the 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 $18,000 a year. Or $24,000 if you are over 50. Fortunately, there are ways that you can recover retirement plans after a divorce.

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

  • Get a Qualified Domestic Relations Order (QDRO). If you are concerned that your spouse’s employer will pay out the benefits to your spouse/ex-spouse, which could leave you with little to nothing in assets, you should consider getting a QDRO. This can protect you by ordering your spouse’s pension plan to pay your just share of plan benefits. Your QDRO will guarantee that your marital settlement agreement doesn’t permit the retirement assets to be separated and spent without penalty. These orders only apply to retirement plants that are IRA tax-qualified and covered by the Employee Retirement Income Security Act (ERISA).
  • Consult your attorney or specialist. The divorce court, as well as your retirement plan’s administrator, must approve your QDRO before it can be technically qualified. Your family law attorney can give you the appropriate forms for your QDRO, and he or she can also help you draft the specific wording of the order as well. Your lawyer 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 plans separately, 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 will require an immediate payout, while others will allow lump sum payments later on and periodic payments.

It’s crucial that you take the right legal steps and actions in order to protect your assets and legal rights during a divorce. If you would like more information on what will happen to your retirement savings during your divorce proceedings, contact our San Jose family law attorney at the Law Offices of Thomas Nicholas Cvietkovich today for a free and confidential consultation.

How Can I File a Restraining Order During My Divorce?

August 14, 2018

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.

What Is a Marital Settlement Agreement?

July 21, 2018

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. This agreement outlines the terms of your divorce and the future relationship between you and your spouse after the divorce procedures. Many other components are involved in this agreement that will help you and your spouse feel clearer on where you both stand once the divorce is settled.

What Are the Benefits of a Marital Settlement Agreement?

  • Content details. 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 might have when reviewing your divorce. The agreement can cover anything from how property and real estate will be divided, child custody and support, debt division, spousal support and other important issues.
  • You are permitted to create your own marital settlement agreement with your spouse and to file it with the divorce court. These forms can be drafted with the assistance of a family law attorney. However, 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. Avoiding court can save you a lot of money. Even if you do decide to go to court, the agreement will help speed up the case.
  • 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 to walk you through this process will definitely help the divorce proceedings move quicker and easier. If you are interested in knowing more about a marital settlement agreement or the process of filing for divorce, contact our San Jose divorce attorney today.

What Are the Differences Between Divorce and Separation?

June 14, 2018

There are many different terms involved in divorce law that can get confused with each other, especially if you are unaware of the situation that you and your spouse are currently in. The two most common divorce terms that are thrown around are divorce and separation, but what exactly is the difference between the two?

How Are Divorce and Separation Different?

The most basic and obvious difference between divorce and separation is that you are technically still married during a legal separation, whereas in a divorce your marriage has officially ended. A legal separation is considered a court order that describes the duties of a couple while they are still married but are living apart. Legal separations can be helpful if the spouses still need to work through other financial and personal issues that are affecting the marriage. Other differences that stem from this basic difference are:

  • Health care: Separation allows for the retention of health care and other similar benefits. Certain benefits (like Social Security) will often terminate after a divorce.
  • Marital status: Separation permits you to retain your marital status legally, but you cannot remarry anyone. Once you are divorced, you are legally permitted to remarry.
  • Decision-making: Separated spouses are still considered next of kin and can still make financial or medical decisions. Divorced spouses, however, are no longer next of kin.
  • Financial debts: Separated spouses can still be liable for the debt of the other, but in a divorce, your debts are handled through the dissolution process.
  • Property rights: Separation preserves each spouse’s legal rights to any property benefits upon the death of the other spouse, but a divorce gets rid of these rights.
  • Remarriage/reconciliation: Divorce can’t be undone, and reconciliation is a lot easier with legal separation. You would have to remarry after a divorce if you want to be together again.

Our divorce attorneys are experienced in family law issues concerning divorce and separation. If you and your spouse live in the San Jose area and would like representation in divorce court, you should contact us for a free consultation or more information.

How to Develop a Parenting Plan After Divorce

May 14, 2018

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).