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San Jose Divorce Attorney

San Jose Divorce AttorneyDivorce is an emotional time during anyone’s life and should be handled as such. Divorce involves not only the dissolution of the marriage, but also the separation of assets acquired during the marriage, child custody arrangements, and ongoing child support obligations.  If you are going through a divorce, it is important to consult with an experienced San Jose Divorce Attorney as soon as possible to ensure you receive the representation you need to obtain the best possible outcome for your family.

Divorce in California

Divorce, as defined by Black’s Law Dictionary, is the legal separation of a married couple, affected by the judgment of a court.  This definition is no different in California, whereby the dissolution of marriage restores the parties to the state of unmarried persons, effectuated by a court. California, like most states, has adopted “no-fault” divorce, meaning that a married individual may request a divorce or separation without proving wrongdoing by either spouse.  Typically, a divorce will be brought on the grounds of “irreconcilable differences,” although a divorce may also be brought on the grounds of “permanent legal incapacity to make decisions.”  If the marriage was not entered into in California, one spouse must be a resident of California (and the relevant county) for at least six months prior to bringing a claim for the dissolution of marriage in the state of California.

A proceeding for divorce is often begun through the filing of a divorce petition which states the relevant facts of the marriage, such as the date of marriage and the number of children from the marriage.  If a court determines that there is a reasonable possibility of reconciliation (thereby not finding irreconcilable differences), the court may continue the proceeding for a period of up to 30 days.  In certain situations, such as where there are no children of the marriage, the marriage was not longer than 5 years, and neither spouse has an interest in real property, the marriage may be dissolved by summary dissolution.  However, this comes with various waivers, such as any right to spousal support.

The recent Supreme Court decision, Obergefell v. Hodges, legalized same-sex marriage throughout the United States, including California.  However, same-sex couples also, unfortunately, experience the same dissolution of marriage in situations where the marriage does not work, and must also go through the same divorce proceedings as any other married couple.

Void and Voidable Marriages

In limited circumstances, a marriage may be voided, rather than dissolved.  However, a marriage may be voided only upon a finding by the court that the relationship was illegitimate, such as certain marriages between family members.

Legal Separation

Legal separation is another option for spouses seeking time apart without wishing to go through the finality of divorce.  After the legal dissolution of marriage, spouses are returned to their “unmarried” status.  However, legal separation offers spouses the opportunity to experiment with living apart and the division of assets.  During a legal separation, both individuals will still be considered “married” and will be unable to remarry during this time.  While a legal separation may still lead to the dissolution of marriage, this option allows couples more time to consider whether a divorce is what they truly want, rather than go through the administrative burden of a divorce.

Marital Property

One of the most important considerations during a divorce proceeding is the property acquired during the marriage.  Property acquired during the marriage is presumed by the court to be community property, and thereby jointly held by both spouses.  There are certain methods to overcome this presumption, such as through proof that the property was agreed to be separate property or was acquired as separate property.

The court often encourages both parties to come to an agreement regarding the division of the marital estate, often accomplished during mediation or arbitration.  However, in situations where a divorce involves high net worth assets or a hotly contested divorce, the court may need to intervene to determine the most equitable division of assets.  In determining the division of property, a court will often look to various factors, such as the grounds the divorce was brought on, and whether the marriage led to any children.

The division of marital property will often include division of assets such as retirement plans and other financial assets acquired during the marriage.  It is important to consult with an experienced family law attorney during the dissolution of marriage to ensure you receive the assets you are entitled to receive under the agreement.  Certain debts and liabilities, such as student loans and mortgages, must also be considered during the division of property and could play an important role through the dissolution of marriage.

Spousal Support

A provision for spousal support may also be written into the divorce agreement.  However, spousal support is not automatically provided during and after the dissolution of marriage.  In fact, it is the exception rather than the rule.  However, in limited circumstances, one party to the divorce may request spousal support for a certain period of time.  A judge will consider facts such as the length of the marriage, the earning capacity of the spouse requesting the spousal support, whether any children were the product of the marriage, and the age and health of both spouses.  If you believe you are entitled to receive spousal support due to the conditions of your marriage, make sure that this is part of the divorce agreement and is considered during negotiations.

Child Custody

Arguably the most important factor in any divorce or legal separation that involves children from the marriage is the issue of child custody.  Child custody agreements must be carefully considered during the course of the divorce negotiations, and it is often suggested that both spouses work together to come up with their own child custody agreement, rather than leaving it up to the court to determine the best options.  California offers parents the option of joint custody or sole custody.

During the determination of custody, the court will look into what is in the “best interest of the child.”  This includes a review of the following:

  • History of abuse by either parent
  • The health, safety, and welfare of the child
  • Contact with both parents
  • Illegal drug use or alcohol abuse
  • One parent’s new spouse or roommate, especially in situations where that individual has a criminal background

Courts will also consider the wishes of the child if the child is of an appropriate age to make such a decision.  After its consideration, the court will make its decision in writing, declaring whether the parents will enjoy joint custody or one parent will be awarded sole custody.  However, if the parents make the determination without the use of the court, they will be entitled to determine the appropriate custody arrangement without court intervention.

Courts will follow the California Family Code in awarding child custody, which notes that every custody arrangement is presumed to be joint custody (as in the best interests of the child).  Therefore, the burden of proof must be established to award sole custody to one parent. Courts encourage frequent and continuing contact with a child from both parents.  In most joint custody arrangements, parents will have the ability to make joint decisions regarding the health, education, and welfare of the children, and will also have significant periods of physical custody.  In some situations, a child custody agreement may be so detailed as to list out every weekend and holidays for the next 5 years.  Some spouses may agree to a more relaxed schedule and are agreeable to last-minute changes in a schedule, as long as major holidays and birthdays are provided for in the agreement.

Other court-appointed child custody agreements might require one parent to notify the other if the child’s residence will change for more than 30 days.  In issues where one parent is the primary conservator and their house is where the child primarily spends their time, that parent must notify the other if they move locations, and might be prohibited from moving out of town.

During joint custody agreements, both parents will have continued access to medical and other legal records of the child and should be informed of any health and medical decisions made on the child’s behalf.  Both parents should also have continuing access to the child’s school records and decisions concerning the child’s education.

In very limited situations, courts may award sole custody to one parent, after reviewing the facts of the case and taking into account any instances of child abuse or other issues that could be detrimental to the child.  In situations where both parents are found to be unfit by the court, the court may award guardianship of the child to grandparents or other relatives.   However, this situation is very rare, and the court will often work with the parents to ensure the children of the marriage are not affected by the outcome of the divorce.

Child custody agreements may be modified or terminated if circumstances change over the years, and based on the child’s preference.

Child Support

Closely following the determination of child custody is the issue of child support.  The primary caretaker of the child, even in joint custody arrangements, will often receive a monthly payment from the other parent which covers the basic needs of the child.  Child support obligations remain in place until the child reaches the age of 19 years or completes high school.  However, some child support agreements provide additional support beyond that required under California law.

The court will consider the following in setting up court-mandated child support:

  • Both parents’ income and level of responsibility for the children
  • Children’s interest
  • The children’s current standard of living

The California uniform guidelines for child support follow a formula based on a calculation of the following:

  • The amount of both parents’ income to be allotted for child support under a state-mandated formula
  • A high earner’s net monthly disposable income
  • The percentage that the high earner will have primary physical responsibility of the child
  • The total monthly disposable income of both parties

The amount of child support from the parents’ income which is allotted toward child support is based on the total net disposable income in ranges from:

  • $0-$800,
  • $801-$6,666,
  • $6,667-$10,000, and
  • Greater than $10,000.

The number of children will also impact the monthly child support in the amount of set percentage.  The child support may be raised or lowered depending on the income of the parent, and may be modified in certain circumstances. However, a court may only look at the income of the parent, and not the income of a new spouse.

If the parent who pays monthly child support loses their job, modification of the child support agreement is often necessary to keep up with payments.  Child support may also be modified if the child’s ongoing monthly expenses change, depending on the type of expense.  Parents who closely share ongoing decisions regarding the child are often more agreeable to amending a child support agreement.

After any divorce, it is important for the parents to maintain an amicable relationship to ease the transition for the children.  The child custody agreements and child custody agreements do not need to be mandated by a court, but instead can be agreed to by both parties through mediation or other negotiations, saving both parties the cost of court.  An experienced family law attorney will be able to advise you on the best options available given your unique situation and will assist you in securing an agreement that provides you with ongoing access to your children.

Aeschleman Law | San Jose Divorce Attorney

Divorce requires married individuals to carefully examine all aspects of their married life, including their assets and any children of the marriage.  The California Family Code has provided an easy blueprint for courts to follow in instituting divorce agreements, spousal support agreements, child custody agreements, and child support agreements.  However, the experienced San Jose Divorce Attorneys at Aeschleman Law can help ease parties into this transition through the use of mediation.  The dissolution of marriage is a traumatic time for any couple and represents the ending of years of commitments, which is often sometimes difficult to go through on your own.  Contact our attorneys for extremely family-focused representation. We work closely with you to examine your assets and the best child custody arrangements to keep you involved in your children’s lives.

Aesheleman Law

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1550 The Alameda #308
San Jose, California 95126

(408) 724-8930

(408) 758-6528

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Jason - "Nicole helped me get custody of my son, and gave me a foothold in my case. I could not have asked for a better representation"