How to File a Restraining Order in California

March 30, 2020

Deciding to file a restraining order is not easy. You may need protection but may not know where to start. How can you protect yourself and your loved ones quickly? What type of restraining order do you need? Do you know how to file a restraining order in California? Fortunately, filing a restraining order is easier with an experienced family law attorney on your side. Your attorney can help you through this difficult time and protect you and your family.

Types of Restraining Orders in California

There are three main types of restraining orders in California. These restraining orders prevent individuals from coming close to you for specified amounts of time. Understanding these restraining orders is important when filing.

Emergency Protective Order

Only a law enforcement officer can request an emergency protective order. This most often occurs after police enter a property for domestic violence. If the officer has reason to believe that domestic violence occurred, they can file an emergency protective order. A judge issues this order and it is enforceable for one week. This order prevents the abuser from re-entering the home, even if they share this home with the victim.

Temporary Restraining Order

You can apply for a temporary restraining order if you are in immediate danger and need protection. These orders typically last from 20 to 25 days. In the end, you must attend a hearing to determine whether the judge will issue a permanent restraining order. A temporary restraining order offers immediate and quick protection from abuse and harm.

Permanent Restraining Order

Once a temporary restraining order expires, a judge will decide whether to issue a permanent restraining order. During the hearing, the judge will review the details of the case and determine if the person asking for protection is in danger. If a judge issues a permanent restraining order, the length of protection time varies. A domestic violence restraining order is valid for five years. A civil harassment restraining order is valid for three years.

How to File a Restraining Order in California

Before filing a restraining order in California, it is important to seek legal help. Our San Jose restraining order attorney may be able to help you during this time. There are many steps involved in filing a request for a protection order. It is important to file the correct paperwork. In general, there are several steps for filing a request for a restraining order. These steps may include:

Step One:

Fill out various court forms including, but not limited to:

  • Request for Domestic Violence Restraining Order (DVRO)
  • Notice of Court Hearing
  • Temporary Restraining Order
  • Request for Child Custody and Visitation Orders
  • Child Custody and Visitation Order
  • Request for Order: No Travel With Children

Step Two:

File court forms with the court.

Step Three:

Have the restrained person served papers.

Step Four:

Attend the court hearing.

Contact Our San Jose Retaining Order Attorney for Help

If you need to file a restraining order, it is important to know what to do. This is often a difficult decision and one you should never face alone. As such, it is important to find an experienced San Jose restraining order attorney to fight for you.

At the Law Offices of Thomas Nicholas Cvietkovich, we offer free consultations to help you during this stressful time. Our lawyer will meet with you to discuss your future and help answer all of your questions about your restraining order. Call us today at (408) 404-8656 or fill out our online contact form. We are here when you need us.

How to Prepare for a Divorce in California

February 28, 2020

Are you considering a divorce? If so, you already know that it is not easy. Before filing for divorce, it is important to have an exit plan in mind. Pre-divorce planning is crucial, and it involves meticulous preparation and financial strategies. It involves thinking about the children and how you will care for them after your separation. Yet, life after divorce does not have to be difficult. Our San Jose divorce lawyer can help you prepare for a divorce in California.

Preparing for a Divorce in California

When preparing for a divorce, it is important to consider many different aspects. With a little preparation and hard work, you can make the divorce process easier.

Finances

One of the scariest parts of getting divorced is figuring out how you can support yourself. As such, pre-divorce financial planning is a must. Do not plan on spousal support or child support to pay most of your expenses.

Evaluate your financial situation and the expenses surrounding your new cost of living. A financial advisor and a divorce lawyer can help you plan for the financial aspects of life after divorce.

Career

If you do not already work outside of the home, make a plan for how you will earn money after your divorce. Before getting a divorce, you may want to consider going back to school or looking for a job. If you already have a job, you may also consider career counseling or job training to enhance your current salary.

Paperwork

Getting divorced involves compiling a lot of paperwork and statements. Prepare copies of the most recent financial records and assets. This will make the divorce process smoother in the long run. It may also prevent specific statements from going missing. Before your divorce, gather the following documents:

  • Bank statements
  • Credit card statements
  • Investment account records
  • Retirement account statements
  • Loan applications
  • Last three to five years of tax returns
  • W2 copies
  • Property tax bills
  • Mortgage statements
  • Credit reports

Support

Going through a divorce is emotionally draining and difficult. The process can bring up many unwanted negative emotions and feelings. Before beginning the process, it is a good idea to develop a strong and solid support system. Consider going to see a professional counselor so you can begin processing these feelings and emotions as they arise. Surround yourself with family and friends who love you and who can help you through this time.

Children

If you have children, it is important to think about their needs before divorcing. Plan on how you want to continue raising them and how much parental involvement you would like to have.

Make a plan for how you will tell the children about the divorce. Gather support for them as well, such as family therapy. Divorce may mark the end of your family unit as you once knew it. However, it does not signal the end of your family. Reassure your children that their family is changing, but not disappearing.

Contact Our San Jose Divorce Lawyer

If you want a divorce, it is important to plan ahead. There are many things to consider before filing the paperwork, such as finances and parenting time. As such, it is important to talk to an experienced and skilled San Jose divorce lawyer as soon as possible.

At the Law Offices of Thomas Nicholas Cvietkovich, we offer free consultations to help you during this difficult time. Our San Jose divorce lawyer can work with you one-on-one and help answer all of your questions about divorce. We can help you prepare for your new life after divorce. Call us today at (408) 404-8656 or fill out our online contact form.

What You Need to Know About California Child Relocation Laws

January 30, 2020

Child custody is a complex area of family law. While the court considers the needs of the child above all else, there are many factors that affect the child’s needs and best interests. If you plan on relocating with your minor child when you and the other parent are not together, it is important to familiarize yourself with California child relocation laws. You may also want to discuss your situation with our San Jose family law firm.

California’s Custody Relocation Statute

California child relocation laws are covered under California Family Code Section 7501. This short statute is straightforward but is broad enough for judicial interpretation and discretion. Under this law, a parent with primary physical custody can move with the minor child if they have:

  • The other parent’s agreement
  • Court order

The court is generally likely to allow a parent to move away with their children if they are the primary parent. In these situations, the burden of proof is on the non-custodial parent to prove that the move would harm the child. Joint custody agreements are more complicated.

How Far Can You Move When You Have Joint Custody?

There is no set distance that you can move without triggering a move-away case in California. Any move that would disrupt the current custody arrangement requires consent or court order.

Per the Judicial Branch of California, the burden of proof switches when parents share joint custody. If one parent wants to move and one parent disputes the move, the parent initiating the move must demonstrate that the change in parenting plan is in the best interests of the child.

Moving Out of State If There Is No Custody Agreement in Place

If there is no custody order in place, there is technically nothing preventing a parent from moving out of state with their minor child. However, it may not be in your best interests to move without getting a visitation schedule in place and securing a court order allowing the move. If you move and the other parent files for custody, the court may order you to return to California with your child.

Why You Need a San Jose Child Custody Attorney If You Plan on Moving

Whether you are interested in moving away with your child or you worry that the other parent wants to move away, it is important to hire a family attorney in San Jose. If the other parent has an attorney, you are unlikely to fairly represent yourself if your case goes to court.

With the help of our San Jose family law firm, you can prove that your arrangements meet the child’s needs and serve their best interests. Your attorney may help you secure the paperwork you need to prove that you have:

  • Proper living arrangements
  • Proposed custody and holiday schedule
  • Social support needed for the move

A lawyer can also anticipate the other side’s arguments and come up with counter-arguments to support your suggested plan. Explore your options now and call us at (408) 404-8656 to schedule a consultation.

Additional Reading:

What Is the Difference Between Divorce and Legal Separation in California?

December 27, 2019

There are a couple of different ways to end your marriage or domestic partnership in California. The two most common ways are divorce and legal separation. However, you may not know the differences between them. Our San Jose divorce lawyer explains the difference between divorce and legal separation in California. If you have additional questions about divorce, please contact us.

What Is a Legal Separation in California?

A legal separation may be the best option for you if you cannot or do not want to end your marriage or partnership. Generally, a legal separation is a court order that describes the duties of a couple while they are still legally bound but living apart. Similar to a divorce, you can request the court to consider important family matters, such as:

  • Child custody
  • Child support
  • Spousal support
  • Property and debt division

Differences Between Divorce and Separation

The main difference between divorce and legal separation is that you are still married or in a domestic partnership under a legal separation. Your marriage or partnership legally ends in divorce. 

A few differences that stem from this basic difference include:

  • Marital status. You cannot remarry or enter into a new domestic partnership if you are separated. 
  • Healthcare. Separation allows for the retention of healthcare and other similar benefits. Certain benefits, like Social Security will often end after a divorce.
  • Decision-making. Separated spouses are still considered next of kin who can 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. However, you may request the court to make an order about debt division. In a divorce, your debts are handled through the dissolution process.
  • Remarriage/reconciliation. Divorce cannot be undone. You would have to remarry after a divorce if you want to be together again. Reconciliation is easier with legal separation.

Are You Considering a Divorce or Separation in California?

Our San Jose divorce attorney represents individuals and couples dealing with divorce or separation issues. If you have questions about your legal options, feel free to call our office for a free consultation. Contact us at (408) 404-8656 or fill out our online form and we will be in touch with you soon.

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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