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 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 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 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.

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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