Considering Filing for Divorce in California?

Contact Our San Jose Divorce Attorney for a Free Consultation

Getting divorced raises a lot of questions as well as causes a great disruption in your life. Anyone who has been through divorce proceedings can tell you that the decision and the subsequent process is one of the most stressful experiences that they have ever gone through. However, once they came out on the other side, free from the constraints of an irreconcilable relationship, they were much happier for undergoing it.

Making the decision to divorce your spouse is stressful, but hiring a divorce lawyer does not have to be. Be sure you choose someone who will not only represent you and your best interests, butis someone you can rely on and trust. Further, an experienced divorce lawyer can offer you support in the form of expert advice and guidance through confusing divorce proceedings – you do not have to do it alone! Hiring a divorce attorney will help you best protect your loved ones as well as your livelihood. San Jose divorce attorney Nick Cvietkovich utilizes his broad legal experience- which spans across several areas, including criminal law, traffic violations, and drug crimes –in order to provide the best representation possible for his clients.

What Are California’s Community Property Laws?

California law states that “community property” is any asset (car, house, etc) or income incurred while you were married. The only exceptions are assets you received as a gift or inheritance. Property that was acquired before marriage is considered “separate property” and cannot be included. If a prenuptial agreement was not signed prior to marriage, then the couple’s community property will be determined and divided equally among them during the divorce proceedings. This is usually determined by the total net worth – or fair market value – of all combined property.

For example, if the couple has no children, then the house will be sold and its value included in the final property net worth total. On the other hand, if minor children are involved, one parent may inherit the residence while the other inherits the family business or a car. Note that California state law does not enforce “in kind” division of property, where each physical item is divided – it is generally divided only by net worth.

You should also be aware of any “quasi-community property” that exists between you. This type of property is any real estate purchased outside of California by either spouse. If you or your spouse have quasi-community property, then it will not be included in your divorce settlement as community property.

If your spouse was enrolled in a pension, retirement, or other benefit program while you were married, then any interest that was accumulated during the marriage is considered community property. However, if your spouse was enrolled in one (or more) of these programs prior to marriage, then it is not considered community property.

What Is the Divorce Process?

California only allows “no fault divorce”. This means that a couple or individual can file for divorce based on “irreconcilable differences”- even if one party wants to stay in the relationship (otherwise known as a “contested divorce”). In order to legally dissolve your marriage, you must provide proof of residence and you must have lived in the state of California for at least six months prior to filing for divorce.

If there is limited property involved, your marriage has lasted for five years or less, and/or you do not have children or real estate, then you may be able to opt for a simpler divorce process. This simpler type of proceeding does not involve an appearance before a judge. It simply entails you coming to an agreement with your spouse about how you will split everything.

What if you do not qualify for this limited approach? In these cases, a typical divorce proceeding goes as follows:

  1. A spouse (the respondent) files a petition for divorce. The other spouse is served with the petition and has 30 days to respond.
  2. If children and/or domestic violence are involved, the respondent can request an “Order to Show Cause” hearing in which a judge can grant temporary custody or a restraining order, if necessary.
  3. Once the divorce proceedings are underway, you and your spouse will exchange relevant information (including income and expense incursions), discuss all forms of property and how it will be divided. This process is called “the discovery”.
  4. Upon completion of the discovery, you and your spouse (along with your respective divorce attorneys) will come to an agreement and a settlement will be determined. One or both attorneys will draft a contract called a “Marital Settlement Agreement” which each spouse will then sign.
  5. After the settlement is signed, one or both attorneys will draft another court document called a “Judgment of Dissolution of Marriage” which contains all agreements and court instructions. You are given a copy and the original is filed away for official use.

Please note that you will have to wait around six months before your divorce is finalized in either type of proceeding. Further, if you and your spouse cannot come to an agreement on all issues, then a trial will have to take place.

Questions? Contact a San Jose Divorce Attorney for a Confidential Case Review

Are you or someone you know getting a divorce? The lawyers at the Law Offices of Thomas Nicholas Cvietkovich are here to help during this troublesome time. With their combined expertise, passion, and experience your divorce arbitration is sure to go smoothly- allowing you more time to get back to your life. Contact us today.