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 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.

How to Develop a Parenting Plan After Divorce

May 14, 2018

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).

Divorce in California

March 20, 2018

The Mythical 10 Year Rule

When a couple divorces after more than ten years of marriage, people think there’s a rule that says alimony is required to be paid indefinitely. This rule, however, is a myth. Truth be told, California does not have a 10 Year Rule. Here are the facts behind this myth.

California law says that when a marriage is considered “of long duration,” the court can continue making decisions about matters between the spouses, also known as retaining jurisdiction after the divorce. The court can also reevaluate its orders and modify them if it is found a change is justified. In California, a marriage longer than ten years is “of long duration”.

The duration of a marriage can affect alimony, which is where the 10 Year Rule might crop up. There’s no need to cling to a bad marriage just to earn alimony benefits. Other factors can affect alimony outside of marriage duration and include:

  • Age
  • Assets
  • Needs
  • Earnings
  • Employment

Spousal support, also known as alimony, is payments made to the lesser-earning spouse so they can maintain their original standard of living before the divorce happened. The idea is that the supported spouse will be self-supporting within a reasonable time period and spousal support payments can then cease. In the case of long term marriages, the court will decide whether to grant a lesser or great period of time for the lesser-earning spouse to receive alimony. Again, the court still retains jurisdiction over marriages of long duration after the divorce and their decision making includes alimony. While lifetime alimony is not automatic or required, there are circumstances where the court might decide the lesser-earning spouse will never be able to support themselves.

If you were part of a long-term marriage and are worried that you’ll be forced to pay huge alimony payments over a long period of time, contact the alimony attorneys at the Law Office of Thomas Nicholas Cvietkovich. Our law firm is prepared to help you in your alimony case to ensure the court makes a fair and sound decision. Contact us today to schedule a free consultation.