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.

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.

Follow our Facebook page for updates on future blogs concerning family law!

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.