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 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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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.