Understanding California Grounds for Divorce

November 15, 2019

In the past, spouses who wished to divorce in California needed to prove fault to receive a divorce. Some of the California grounds for divorce included adultery, abandonment and substance abuse.

Fortunately, times have changed. Divorcing couples no longer have to prove fault to get divorced.

If you are considering a divorce in California, it is important to know the grounds for divorce. California grounds for divorce are straightforward. You can get a divorce on the grounds that the marriage is irrevocably broken. Simply wishing to divorce is enough.

Is California a No-Fault Divorce State?

California is a no-fault divorce state. That means that anyone can file for divorce for any reason. You can petition for a divorce even if your spouse contests the divorce.

You do not need to prove infidelity or establish that your spouse did anything wrong. Keep in mind, though, that the court will consider other circumstances, such as domestic violence, when making determinations about issues including:

  • Alimony or spousal support
  • Child support
  • Child custody

Rules for Divorce in California

While you may not need to prove fault to divorce in California, there are some requirements:

  • There is a mandatory six-month waiting period before the divorce is finalized
  • One of the parties must be a resident of California for at least six months before filing for divorce.
  • The filing must occur in the county where either party resides.
  • Either party must have resided in that county for at least three months.

How Can a Divorce Attorney Help Me?

When filing for a divorce, a divorce attorney can help you through the process. Divorce is complicated and often contentious. Emotions often run high.

During this time, individuals are often concerned about parenting rights, financial assets and their futures. You and your spouse will have to find resolution on many different matters, including:

  • Division of assets
  • Child support
  • Child custody
  • Parenting plans

Contact Our San Jose Divorce Lawyer Today

If you are considering divorce in California, it is important to know when and how you can file for divorce. California divorce laws are different from divorce laws in other states. As such, it is important to talk to an experienced and skilled San Jose divorce lawyer as soon as you are able.

At the Law Offices of Thomas Nicholas Cvietkovich, we offer a free initial consultation to help you during this difficult time. 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 today at (408) 404-8656 or fill out our online contact form for more information.

Five Reasons a Judge Might Order Spousal Support in California

October 15, 2019

Divorce proceedings are always difficult, particularly when it comes to finances. Will one spouse get spousal support in California? How much spousal support should be awarded? And how is that determination made?

Below, we discuss five factors a judge considers when granting spousal support in divorce proceedings. Keep in mind that the court looks at many factors when determining spousal support. Our San Jose divorce attorney can help you understand California spousal support laws.

Reason #1: Existing Needs and Standard of Living

During the financial part of divorce proceedings, the court will look at many factors. These factors include the debts, income, available resources and needs of each spouse.

The court considers how much support each spouse needs to maintain the standard of living established in marriage. If one spouse clearly has more needs than the other spouse, some form of spousal support, or alimony may be awarded. The court also looks at whether the supporting spouse can handle payments.

The court considers how much support each spouse needs to maintain the standard of living established in marriage. The court There are several types of spousal support in California. The most common is regular spousal support payments.

It is important to note that the court considers the needs of both spouses equally. This is regardless of gender. The system relies on a series of requirements that fairly represent both parties.

Reason #2: Household Contribution and Earning Capacity

Another important factor when determining spousal support in California is household contribution. How much did each person contribute during the marriage? If one spouse contributed much more than the other, they may seek a refund.

For example, if one spouse handled the car payment and rent while married, and the other spouse was capable of assisting but did not, that spouse could be required to return some of the money that supported them.

Reason #3: Length of Marriage

The court will often consider the length of marriage in determining spousal support. Throughout the marriage, one spouse may have become more reliant on the other spouse. This could be due to shared children or an adjustment to a different standard of living.

The more dependent spouse must have an appropriate amount of time to adjust to a new reality. For example, if the couple spent two decades together, the support might last for ten years. If the couple spent less than two years together, it might last for less than six months.

Reason #4: General Health

If one spouse has significantly poor health, he or she may have a better likelihood receiving spousal support. This can depend on the severity of existing health problems. It may also depend on when these problems began and treatment frequency.

Reason #5: Employment and Ability

Finally, a judge may consider the employment history of both spouses. Employment history is important to look at each spouse’s earning potential moving forward.

If one spouse is more dependent, will he or she have the ability to maintain a full-time job that offers the same standard of living? And, if so, how long will it take for the dependent spouse to find such a job?

Contact an Experienced Divorce Attorney for Assistance

Do you feel that you might need spousal support? Again, these are only a few factors the court considers when awarding spousal support in California. Understanding California spousal support laws can help you get the help you need.

For professional representation, contact our San Jose divorce lawyer at the Law Offices of Thomas Nicholas Cvietkovich. Call us at (408) 404-8656 or fill out our online contact form.

Four Tips for Long Distance Co-Parenting

September 15, 2019

Going through a divorce and subsequent child custody battle is difficult enough. Long distance co-parenting can feel even harder. But it doesn’t have to be that way.

Here are a few tips to help you navigate long distance co-parenting with relative ease:

Tip: Create a Detailed Schedule

The first step you can take toward organized, long distance co-parenting is to create a detailed schedule. Understand that you might not always be able to attend your child’s soccer game or piano recital, but you will be able to share the important moments.

Initially, you will want to create a solid schedule of visitation time. Maybe once a month or — if the distance is greater — once every three or four months. Determine which holidays will be shared between parents and who will travel each time.

It is important to consider more than in-person visitation periods when designing your schedule. Make a note of important milestones in your child’s life and be sure to reach out as they pass. Birthdays and holidays should not go unnoticed, and you should attempt to contact your child weekly. 

Tip: Use Technology to Your Advantage

There are many ways to communicate with your child outside of a traditional phone call. You can also video chat with Skype or Facebook Messenger, send pictures with Snapchat, or play games together. Some games played on your phone, like Hayday, allow you to interact with your child regularly in a kid-friendly environment.

When it comes to important school projects and homework, you can use Google Drive to check and discuss your child’s progress. Family pictures can be stored and shared through the cloud. Long distance families have this technological leg-up over previous generations, so take advantage. 

Tip: Communicate

Perhaps the most important step of the process is developing a strong line of communication, both between yourself and your child and — if possible — between yourself and your ex-spouse. Divorce can be complicated, but the friendlier the communication between you and your ex-spouse, the better for your child’s emotional well-being.

There will inevitably be times when your visits do not go as planned. For example, your child may be sick and cannot see you, or maybe you have to work and cannot make the trip yourself. In these situations, it is imperative that you communicate openly and do not project your frustrations onto your child.

Tip: Consider Unique Arrangements

When both ex-spouses live nearby, children often spend every other weekend (or every other week) with each parent. But for parents that live in different states, this may be impossible. 

One parent will, for the sake of ease, be the primary caregiver. The child will attend school in their state and have a room in their house. You can arrange for one parent to have their child during summer break and holidays — but, as your child grows, this arrangement may become more difficult.

Remember that your family does not have to fit any “normal” expectations. Let your schedule adapt to your needs by evaluating your schedule on a case-by-case basis. If you need assistance in making these decisions, our San Jose family law lawyer can help.

Contact an Experienced Family Law Attorney for Assistance

Long distance co-parenting may seem impossible at first. However, with the right assistance and a strong family dynamic, these relationships can thrive. For professional advice, contact our team at the Law Offices of Thomas Nicholas Cvietkovich by calling (408) 404-8656. You can also fill out our online contact form.

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.