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.