Frequently Asked Questions About Divorce
Unfortunately, it is not uncommon for divorce proceedings to bring a tremendous amount of stress and confusion to your life. At the Law Offices of Thomas Nicholas Cvietkovich, our lawyer helps clients through the California divorce process.
Below, our attorney answers common questions about California divorce. Please keep in mind that there are many nuances to divorce, and every person’s situation and experience is different. To discuss the best legal options for your specific situation, please contact our divorce lawyer in San Jose for a free initial consultation.
Frequently Asked Questions About Family Law
Of all areas of law, nothing pulls at the heart like divorce. The infrastructure of your life begins to deteriorate. Family relationships turn hostile as you are left wondering how to pick up the pieces of your life. All the while, you want to be financially stable and take care of your children. With so many disturbances in your home, it can be difficult to navigate family law issues. While some consider divorce be more painful than death, you do not need to feel alone or hopeless. A passionate and experienced San Jose family lawyer can help you be heard in your family law issues.
How Is My Military Divorce Different from the Regular Divorce Process?
Divorce is never easy. For military families, the process is even harder. With so many to consider things get much more complex than a divorce between two civilians.
Some issues that complicate the process include:
- Filing: Divorces are generally filed in the state where the married couple has legal residence. If a non-military spouse files for divorce in a state that is not the legal residence of the spouse, the court may lack the authority to divide a pension.
- Child custody: Besides being legally complex, custody arrangements are emotionally taxing. Many factors will change the nuances of your cases including whether both spouses are in the military or if either spouse is deployed.
- Division of military benefits: All states treat military pensions as community property. There are many issues to consider such as how long the military spouse has been serving and if
- Child Support payments: Service members are required to provide adequate child support. Besides the Air Force, each branch has its own rules. State law supersedes these military instructions and determines the child support based on the entitlements of the service member. This includes an allowance for housing, basic pay, a basic allowance for subsistence, and any other special pay.
- Health Care: After a divorce, a non-military spouse can opt for no-cost coverage under TRICARE if their marriage lasted for at least 20 years during active service. Otherwise, they may purchase insurance through the Continued Health Care Benefit Program.
We think ahead so that your settlement addresses matters such as if you are stationed in another state but your ex-spouse wants to remain in San Jose, California with the children, or what will happen if you are sent overseas for a year.
Should I Get a Lawyer for Divorce?
If you are preparing for divorce, you should seek the counsel of a divorce attorney to learn about mediation. In San Jose, California, there are two types of mediation that often apply to divorce actions. Concerning the division of assets and debts, mediating can move the couple to an agreed-upon resolution. Divorce mediation moves quicker than a drawn-out negotiation through counsel. It is important to work with an attorney who can review the settlement details. A reliable divorce lawyer can make sure you do not agree to something that is not in your best interests. An experienced lawyer can effectively guide you through mediation and help you finalize your divorce.
What Is Mandatory Child Custody Counseling?
Family Code Section §3170 mandates that the case be set for child custody recommending counseling prior to the court hearing. This happens in any dissolution matter regarding child custody and visitation where there is a dispute. If an agreement is reached, it is reported to the court through the attorneys. As a result, the court hearing may be canceled, and the family makes its own decision. If no agreement is reached, a recommendation will be made by the court counselor and the court hearing will proceed.
The purpose of family court services is to:
- Settle Disputes: Assist families in the settlement of domestic controversies. Usually, these involve the welfare of children where there is an action in Family Court.
- Define Parental Contact: We know you want to mitigate the effects divorce will have on the relationship you’re your children. Family court can ensure children get frequent and continuing contact with both parents after the dissolution of marriage.
- Encourage Cooperation: It can be difficult to come to terms with the sharing of rights and responsibilities. The family court will define the terms of your child custody agreement during and following a dissolution.
- Guardianship: Investigate guardianship cases scheduled for the Probate Court when the prospective guardian is a relative of the child. The investigation will help try to ensure the needs of the child will be met. (Probate Code §1513 & Family Code §3110).
How Does a Restraining Order Work?
The purpose of a restraining order is to keep an abuser away from their victim. However, it can be difficult to determine how accurate claims are.
Some common questions people ask when dealing with a restraining order in California are:
- Who Can Get a Restraining Order: Any victim of any age who has been involved in domestic violence can request a restraining order. Any acts of assault, criminal mischief, harassment, lewdness, threats, false imprisonment, and other acts can constitute a restraining order.
- What Does a Restraining Order Do: If a restraining order goes into effect, the abuser cannot have any contact with the victim. This includes in person or by phone. In addition, the abuser can be asked to leave a residence if the victim is there. Finally, the court may order escorts of programs to facilitate the restraining order.
- How Long Does a Restraining Order Last: This will ultimately be determined by the courts. However, first there will be a Temporary Restraining Order issued. Usually, this is a ten-day period where you are to be served with paperwork.
Do I Need a Family Law Attorney?
It is risky to litigate in emotional situations without a trained family law lawyer. For example, with divorce, court appearances are required even if you and your spouse can quickly agree on most of the major issues. Unfortunately, you will be litigating in the courts if you go through a divorce. These moments of litigation have a drastic impact on the outcome of your case. Furthermore, California divorce laws involve many parts of laws across other practices. If you head to court without a lawyer, you could be at a great disadvantage. A lawyer can guide you through the process to minimize any proposed agreement that is not in your best interests. Sometimes a lawyer is necessary just to have the peace of mind that a crucial issue is missed altogether.
What Happens When My Spouse Leaves?
If your spouse has suddenly left, you should contact a divorce attorney as soon as possible. You may assume that it is unnecessary to hire legal counsel to finalize your divorce. However, California divorce laws are complex. If your spouse picks up and leaves, you can be left with quite a mess on your hands. Chances are that he or she will not respond to divorce filings or make any necessary court appearances. As a result, you may face unique challenges toward protecting your best interests, have increased stress, and feel overwhelmed.
You do not need to remain married just because your spouse does not want to be involved with divorce proceedings. However, there are difficulties with starting the divorce process if you are unable to serve your spouse with divorce papers. You deserve to have your assets, property, rights, and best interest protected.
How Are Contested Divorces Settled?
Even in the situation of a contested divorce, the California courts define all divorces as “no-fault.” This means that neither you nor your spouse needs to prove that the other did something wrong.
As a result, the courts will use evidence and data to determine the division of assets. Usually, assets are given to those who demonstrate that they need the assets more than the other party. For example, a shared vehicle may be sold, and the profits split. If you expect to have custody of your children, odds are you can establish that you have the greatest need.
Judges will base their decision on the facts from outside sources and both you and your spouse’s lawyers. This creates an opportunity for broad-stroke figures and fuzzy logic. Your spouse may try to use legal tricks to make you agree to unfair terms. Therefore, a respected and diligent divorce lawyer can make all the difference in protecting your assets.
What Are My Rights When Defending Domestic Violence Charges?
If you have been arrested on a domestic violence charge, you have rights that are protected by law. In addition, you also have statutory rights that give you options. Most importantly, you have the right to remain silent until you have spoken to a domestic assault attorney. Protecting your rights is important if you want to try to dismiss or reduce the charges against you. If you believe the evidence is strong against you, our firm can negotiate with prosecutors.
Some common domestic abuse claims our firm handles involve:
- Stalking: Stalking charges can materialize if you follow someone in person or online. A family law attorney can help defend against these subjective claims.
- Harassment: You can face a domestic violence charge even if there has been no physical action. These claims allege that you have disturbed the peace or made a threat.
- Child Neglect: In some cases, a party may claim that a child is neglected due to domestic violence or other home issues. Obtaining a child witness can work in your favor to prove you were not a cause of neglect.
- Physical Abuse: Unfortunately, a spouse, family member or partner may claim you have physically hurt them. A domestic violence defense attorney can help counter allegations that are not supported.
What Is the Divorce Court Process?
Unfortunately, it is not uncommon for divorce proceedings to bring a tremendous amount of stress and questions. Sometimes anxieties mount so high that some parties will even ignore a petition. For this reason, you should consider hiring an attorney. An experienced professional can identify if any part of the process can slow down your divorce. Every state has its own set of regulations for divorce court.
However, filing for divorce in California involves:
- Petition: This legal document identifies the parties involved and begins the process. This is a formal application to the court that requests a specific action or form of relief.
- Financial Disclosure: Both parties disclose their separate financial information, assets and obligations. This information is usually given to the court at the end and beginning of the divorce court process.
- Response: If the other party does not respond, the judgment defaults to the petitioner's proposed judgment. When both parties come to an agreement, the result will be a stipulated judgment. A stipulated judgment is a legal document by both parties that details the agreement. If both parties respond but cannot come to an agreement, litigation begins. After litigation, the court orders judgment.
- Negotiations: It may be possible to avoid a trial if both you and your spouse can agree to settlement negotiations. A skilled family lawyer can use negotiations to preserve relationships and mitigate court costs.
- Trial: Divorces do not need to end in a trial but sometimes it is necessary. Attorneys can use their skillful litigation to help bring a favorable and swift resolution.
Does Family Law Include Divorce?
Yes. Family law covers many types of marriage dissolution. Depending on the situation, divorce may not be the best option. For example, some religious beliefs make it difficult for couples to divorce. However, there are other options available.
In addition to divorce, family law includes:
- Child Custody
- Visitation Rights
- Child Support Payments
What Are Types of Family Law?
There are many different types of cases that are heard at family court.
Although family law cases may intersect with other areas as well, most legal cases fall into three categories:
- Family Cases: While family cases are a type of civil case, they are more specific. Usually, they involve parents, children, and/or spouses. For example, common family cases involve marriage dissolution such as divorce or annulment, guardianship, juvenile matters, adoptions, child custody issues, name changes, and protections against domestic violence.
- Civil Cases: Usually, general civil cases involve injuries or disputes over money. Common examples of disputes are landlord/tenant issues, breach of contract claims, foreclosures, and property sales.
- Criminal Cases: As a rule, these proceedings change based on state. Punishments can involve fines, community service, prison, probation, or other penalties.
How to File For Divorce in California
A California divorce involves several steps, which are outlined below:
California residency requirements: You or your spouse must have lived in California for at least six months before filing for divorce, as well as three months in the county where you plan to file.
Identify the grounds for divorce: In California, divorce is no-fault, so proving your spouse's guilt is not required. The difference between you and your spouse can be stated as irreconcilable.
Fill out the necessary forms: The first form you'll need to complete is the Petition - Marriage/Domestic Partnership (Form FL-100). Your request for things like spousal support, child custody, and property division will be outlined in this form.
Serve your spouse: Once you've completed the Petition, you'll need to serve it to your spouse. This can be done in person by a third-party adult or by mail, depending on the circumstances.
File the forms with the court: Once your spouse has been served, you'll need to file the Petition with the court. A Summons (Form FL-1110) will also be required, along with any other required forms, such as a Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
Wait for a response: After you file your forms, your spouse has 30 days to file a Response (Form FL-120) if they wish to contest the divorce. A divorce can be finalized uncontested if they do not file a response.
Negotiate and finalize your divorce: If your divorce is uncontested, you and your spouse can negotiate and settle the terms of your divorce. Child custody and property division may have to be decided by a judge if you can't agree, if you can't come to an agreement.
Obtain a final judgment: Once all the terms of your divorce have been settled, you will be able to obtain a final judgment. Your marriage will be legally ended as a result of this.
If you have questions or concerns about the divorce process, you should consult with an attorney. In addition, the California Courts website has a wealth of information and resources about divorce.
Do I Need a Divorce Lawyer?
Divorce can be very complicated. Issues such as child custody and visitation, child support, and spousal support can all complicate the divorce process. In addition, California divorce laws can differ in regard to domestic partnerships and same-sex marriages.
If you are preparing for divorce, we recommend that you speak with our San Jose divorce lawyer about your situation. We can help you understand your best legal options and your rights and responsibilities under California law.
What Is the Difference Between Divorce and Legal Separation in California?
The main difference is that legal separation does not end your marriage. However, it is similar to a divorce in other ways. For example, you can ask a judge to make orders about property and debt division, child custody and visitation and spousal support.
What Are the Requirements for Annulment in California?
You may be eligible for an annulment if the following situations apply to you:
- You or the other party were under the age of 18 at the time of marriage
- The marriage or partnership was a result of force or fraud or occurred while one party was physically or mentally incapacitated
- You or the other party are legally married or in a partnership with someone else who has been absent for at least 5 years and was not known to be living
Keep in mind that marriage is not valid if incest exists between the parties or if one or both parties are already legally married or in a domestic partnership with someone else.
Are There Alternatives to Divorce?
Yes. You may be eligible to have your marriage found legally invalid through an annulment. If you cannot divorce due to religious reasons or residency requirements, or you do not want a divorce, then a legal separation may be a better option.
How Is Property Divided in a Divorce in California?
If a prenuptial agreement or postnuptial agreement was not signed prior to marriage, then generally, community property is divided equally among both parties during the divorce proceedings. This is usually determined by the total net worth of all community property, rather than dividing each physical item.
Is California a Community Property State?
Yes, California is a community property state. Under California Family Code 760, community property is any asset or income acquired during the marriage.
There are exceptions to community property called separate property. Gifts and inheritance do not count as community property. In addition, property that was acquired before marriage does not count. There are nuances to community and separate property in California. Our lawyer can help you understand these laws and represent your best interests in divorce proceedings.
Is California a No Fault State for Divorce?
Yes, California is a no-fault divorce state. This means that the spouse requesting a divorce does not have to prove that the other spouse did something wrong. In California, it only takes one party to want a divorce. Though it can make the divorce process easier and quicker, both parties do not need to agree to divorce.
What Are the Benefits of Divorce Mediation?
The main benefit of divorce mediation is that mediation moves quicker than a drawn-out negotiation through counsel. In California, there are two types of mediation that can often apply to divorce actions. Concerning the division of assets and debts, divorce mediation can help you and your spouse come to an agreed-upon resolution. It is important to work with a divorce attorney who can review the settlement details. Our attorney can make sure you do not agree to something that is not in your best interest.
In addition, when both parties cannot agree on a child custody plan, Family Court Services (FCS) provides Child Custody Recommending Counseling (CCRC). CCRC is provided in a private counseling office with a court counselor. The FCS allows both parents to work together toward a mutually acceptable agreement for the best interest of the children.
How Do I Handle a California Abandonment Divorce?
It can be difficult to start the divorce process if you are unable to serve your spouse with divorce papers. In addition, chances are that he or she will not respond to divorce filings or make necessary court appearances. As a result, you may face unique challenges when protecting your best interests.
Even so, you deserve to have your assets, property, rights, and best interests protected. Our attorney can help you with all the legal filings and court appearances that are necessary to finalize your divorce.
What Is the California Divorce Process?
Every state has its own set of regulations for divorce court. However, California’s divorce proceedings involve:
- Petition. A petition identifies the involved parties and begins the California divorce process. This is a formal application to the court that requests a specific action or form of relief. It can be started by either party.
- Financial disclosure. Both parties disclose their separate financial information, assets, and obligations. This information is usually given to the court at the beginning and end of the divorce court process.
- Response. If the other party does not respond to the divorce petition, the judgment defaults to the petitioner’s proposed judgment. When both parties come to an agreement, the result will be a stipulated judgment. A stipulated judgment is a legal document by both parties that details the agreement. If both parties respond but cannot come to an agreement, litigation begins. After litigation, the court orders judgment.
- Negotiations. It may be possible to avoid a trial if both parties can agree to settlement negotiations. Our skilled, San Jose family law attorney can use negotiations to preserve relationships and mitigate court costs.
- Trial. If both parties cannot agree on certain aspects of their divorce, then a trial may be necessary.
How Long Does a California Divorce Take?
The length of your divorce will depend on your specific situation. After you file divorce papers and serve them, there is a six-month waiting period before the divorce can be finalized. This means that a California divorce will not be shorter than six months.
What Are the Requirements for Divorce in California?
There are residency requirements you must meet before filing for divorce. At least one spouse must have lived in California for the last six months. In addition, at least one spouse must have lived in the county you file the divorce for the last three months. If each spouse has lived in a separate county for the last three months, then the divorce can be filed in either county.
At the Law Offices of Thomas Nicholas Cvietkovich, your consultation is always confidential. Furthermore, our staff is adaptive and accommodating. Our attorney is conveniently available. Unlike most attorneys, we do not want you to fill out an impersonal questionnaire when you visit. We prefer to talk face to face and get your family’s story from your point of view.
Contact us today online or call us at (408) 844-4016 to schedule a free consultation.